THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY MENSCH, BEAR, CLYMER, CREIGHTON, CUTLER, DENLINGER, ELLIS, EVERETT, GABLER, GINGRICH, HORNAMAN, HUTCHINSON, MILNE, OBERLANDER, QUINN, SAYLOR, STERN, SWANGER, TURZAI AND WATSON, JUNE 17, 2009

REFERRED TO COMMITTEE ON LABOR RELATIONS, JUNE 17, 2009  

AN ACT

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

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

unemployment compensation to be administered by the

Department of Labor and Industry and its existing and newly

created agencies with personnel (with certain exceptions)

selected on a civil service basis; requiring employers to

keep records and make reports, and certain employers to pay

contributions based on payrolls to provide moneys for the

payment of compensation to certain unemployed persons;

providing procedure and administrative details for the

determination, payment and collection of such contributions

and the payment of such compensation; providing for

cooperation with the Federal Government and its agencies;

creating certain special funds in the custody of the State

Treasurer; and prescribing penalties," further providing for

definitions, for experience rating, for qualifications

required to secure compensation and for rate and amount of

compensation.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 4(a) of the act of December 5, 1936 (2nd

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

Compensation Law, amended July 10, 1980 (P.L.521, No.108), is

amended and the section is amended by adding a definition to

read:

Section 4.  Definitions.--The following words and phrases, as

used in this act, shall have the following meanings, unless the

context clearly requires otherwise.

(a)  "Average working wage" means the qualifying total base

year wages of an employe divided by the total number of credit

weeks in the base year, regardless of any limit on the number of

credit weeks used to qualify for or calculate benefits.

[(a)] (a.1)  "Base year" means the first four of the last

five completed calendar quarters immediately preceding the first

day of an individual's benefit year.

* * *

Section 2.  Section 302(a)(1) of the act, amended December 9,

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

Section 302.  Establishment and Maintenance of Employer's

Reserve Accounts.--The department shall establish and maintain

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

following manner:

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

contributions paid by such employer for periods subsequent to

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

account shall be charged with an amount determined by

multiplying the wages of compensated employes of such employer

for the twelve month period ended June thirtieth, one thousand

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

in determining rates of contributions for the year one thousand

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

account shall be charged with all compensation, including

dependents' allowances, paid to each individual who received

from such employer wage credits constituting the base of such

compensation, in the proportion that such wage credits with such

employer bears to the total wage credits received by such

individual from all employers: Provided, That if the department

finds that such individual was separated from his most recent

work for such employer due to being discharged for willful

misconduct connected with such work, [or] due to his leaving

such work without good cause attributable to his employment[,]

or due to his being separated from such work under conditions

which would result in disqualification for benefits under the

provisions of section 3 or section 402(e.1) or if the department

finds that such individual has refused, without good cause, an

offer of suitable work by such employer, thereafter no

compensation paid to such individual with respect to any week of

unemployment occurring subsequent to such separation, which is

based upon wages paid by such employer with respect to

employment prior to such separation, shall be charged to such

employer's account under the provisions of this subsection (a);

provided, such employer has filed a notice with the department

in accordance with its rules and regulations and within the time

limits prescribed therein; and provided if the department finds

that such individual's unemployment is directly caused by a

major natural disaster declared by the President pursuant to

section 102(1) of the Disaster Relief Act of 1970 (P.L.91-606)

and such individual would have been eligible for disaster

unemployment assistance as provided in section 240 of that act

with respect to such unemployment but for the receipt of

unemployment compensation, no compensation paid to such

individual with respect to any week of unemployment occurring

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

immediately following the President's declaration of emergency,

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

of this subsection.

* * *

Section 3.  Section 401(b) and (f) of the act, amended July

9, 1976 (P.L.842, No.147) and December 9, 2002 (P.L.1330,

No.156), are amended to read:

Section 401.  Qualifications Required to Secure

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

is or becomes unemployed, and who--

* * *

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

report to an employment office in accordance with such

regulations as the secretary may prescribe, except that the

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

requirements of this clause as to individuals attached to

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

with respect to which he finds that compliance with such

requirements would be oppressive or would be inconsistent with

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

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

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

employment. For the purposes of this subsection, the term

"active search" shall mean registration for employment search

services offered by Pennsylvania CareerLink system, posting a

resume on the system's database and applying for positions

listed on the system's database which offer employment and wages

similar to those the claimant had prior to their unemployment

and which are within a sixty (60) mile commuting distance. The

secretary may establish additional criteria to define the term

"active search" through promulgating regulations. The

Pennsylvania CareerLink system will provide documentation, as

the secretary deems is appropriate, to the Pennsylvania

Unemployment Compensation Service Center system so they can

conduct the necessary cross reference checks.

* * *

(f)  Has earned, subsequent to his separation from work under

circumstances which are disqualifying under the provisions of

subsections 402(b), 402(e), 402(e.1) and 402(h) of this act,

remuneration for services in an amount equal to or in excess of

[six (6)] ten (10) times his weekly benefit rate [irrespective

of whether or not such services were] in "employment" as defined

in this act[.] and earned wages for "employment" as defined in

this act, in ten (10) separate "weeks." The provisions of this

subsection shall not apply to a suspension of work by an

individual pursuant to a leave of absence granted by his last

employer, provided such individual has made a reasonable effort

to return to work with such employer upon the expiration of his

leave of absence.

* * *

Section 4.  Section 402(b) and (e) of the act, amended August

24, 1953 (P.L.1397, No.396) and October 22, 1981 (P.L.301,

No.106), are amended to read:

Section 402.  Ineligibility for Compensation.--An employe

shall be ineligible for compensation for any week--

* * *

(b)  In which his unemployment is due to voluntarily leaving

work without cause of a necessitous and compelling nature

attributable to his employment, irrespective of whether or not

such work is in "employment" as defined in this act: Provided,

That a voluntary leaving work because of a work-related 

disability if the employer is able to provide other suitable

work, shall be deemed not a cause of a necessitous and

compelling nature attributable to his employment: And provided

further, That no employe shall be deemed to be ineligible under

this subsection where as a condition of continuing in employment

such employe would be required to join or remain a member of a

company union or to resign from or refrain from joining any bona

fide labor organization, or to accept wages, hours or conditions

of employment not desired by a majority of the employes in the

establishment or the occupation, or would be denied the right of

collective bargaining under generally prevailing conditions, and

that in determining whether or not an employe has left his work

voluntarily without cause of a necessitous and compelling nature

attributable to his employment, the department shall give

consideration to the same factors, insofar as they are

applicable, provided, with respect to the determination of

suitable work under section four (t): And provided further, That

the provisions of this subsection shall not apply in the event

of a stoppage of work which exists because of a labor dispute

within the meaning of subsection (d). Provided further, That no

otherwise eligible claimant shall be denied benefits for any

week in which his unemployment is due to exercising the option

of accepting a layoff, from an available position pursuant to a

labor-management contract agreement, or pursuant to an

established employer plan, program or policy: Provided further,

That a claimant shall not be disqualified for voluntarily

leaving work, which is not suitable employment to enter training

approved under section 236(a)(1) of the Trade Act of 1974. For

purposes of this subsection the term "suitable employment" means

with respect to a claimant, work of a substantially equal or

higher skill level than the claimant's past "adversely affected

employment" (as defined in section 247 of the Trade Act of

1974), and wages for such work at not less than eighty per

centum of the worker's "average weekly wage" (as defined in

section 247 of the Trade Act of 1974).

* * *

(e)  In which his unemployment is due to his discharge or

temporary suspension from work for willful misconduct connected

with his work, irrespective of whether or not such work is

"employment" as defined in this act[; and]. For purposes of this

subsection, the term "willful misconduct" shall include the

violation of any reasonable workplace rule or work-related

government regulation or law of which the employe was aware;

more than one day's absence that is not justified or not

reported in accordance with an employer's policy; the deliberate

damage to property of the employer or another employe or the

theft of an employer's or another employe's property; reporting

to work in possession of or under the influence of drugs or

alcohol; threatening a coworker or supervisor with physical harm

or threatening to harm the interests of the employer; disregard

of supervisor's reasonable directives or orders and acts of

negligence or an act of negligence which indicates substantial

disregard for employer's interests.

* * *

Section 5.  Section 402.5 of the act, added July 1, 1985

(P.L.96, No.30), is amended to read:

Section 402.5.  Eligibility of Certain Seasonal Workers [in

fruit and vegetable food processing].--(a)  Notwithstanding any

other provision of this act with respect to service performed in

a "seasonal operation" or "seasonal industry," as defined in

this section, benefits shall not be paid to a seasonal worker,

based on such services, for any week of unemployment occurring

outside of the normal seasonal period of operation, provided

there is a contract or reasonable assurance that such seasonal

worker will perform services in that seasonal industry in his

next normal seasonal period. However, if, upon presenting

himself for work in his next normal seasonal period, the

individual is not offered an opportunity to perform such

services, his claims for unemployment compensation shall be

accepted retroactively to the time the individual's benefits

(based on seasonal and non-seasonal wages) would have commenced

but for this subsection.

(b)  Upon written application filed with the department by an

employer engaged in a "seasonal industry," as defined in this

section, the secretary shall determine, and may thereafter

redetermine, in accordance with the rules and regulations of the

department, the normal seasonal period during which workers are

ordinarily employed for the purpose of carrying on seasonal

operations in the seasonal industry in which such employer is

engaged. An application for such determination shall be made on

forms prescribed by the department. Such application must be

made at least twenty (20) days prior to the estimated beginning

date of the normal seasonal period for which the determination

is requested. Simultaneously with the filing of the application,

the employer shall conspicuously display on the employer's

premises, in a sufficient number of places, a copy of the

application.

(c)  An employer determined, in accordance with the

provisions of this section, to be a "seasonal operation" or

"seasonal industry," as defined in this section, shall be

required to conspicuously display notices of the seasonal

determination on its premises in a sufficient number of places

as will fairly advise its employes of the estimated beginning

and estimated ending dates of its normal seasonal period. Such

notices shall be provided by the department.

(d)  Any successor of a seasonal employer shall be deemed to

be a seasonal industry or a seasonal operation unless such

successor shall, within one hundred twenty (120) days after the

acquisition, request cancellation of such determination.

(e)  Any determination issued under the provisions of this

section shall be subject to review in the same manner and to the

same extent as all other determinations issued under this act.

(f)  Benefits payable to any otherwise eligible individual

who is determined to be a seasonal worker, as defined in

paragraph (5) of subsection (h) of this section, shall be

calculated in accordance with the provisions of this section for

any benefit year which is established on or after the beginning

date of a determination of a seasonal industry or a seasonal

operation by which such individual was employed during the base

year applicable to such benefit year, as if such determination

had been effective in such base period.

(g)  In no case shall a seasonal worker be eligible to

receive a total amount of compensation in a benefit year in

excess of the maximum compensation payable for such benefit

year, as provided in section 404 of this act.

(h)  For the purposes of this section, the following

definitions shall apply:

(1)  "Fruit or vegetable food processing operation" means

those services performed in connection with commercial canning

or commercial freezing of fruits and vegetables.

(2)  "Normal seasonal period" means the normal seasonal

period, as determined in accordance with subsection (b) of this

section, during which workers are ordinarily employed for the

purpose of carrying on seasonal operations in each seasonal

industry, as defined in this section.

(3)  "Seasonal industry" means an industry, establishment or

process within an industry which, because of climatic conditions

making it impractical or impossible to do otherwise[,]:

(i)  customarily carries on fruit or vegetable food

processing operations, or both, only during a regularly

recurring period of one hundred eighty (180) days of work or

less in a calendar year; or

(ii)  operates as a recreational business.

(4)  "Seasonal operation" means engagement in:

(i)  [an operation in which it is customary for an employer

engaged in] a seasonal industry as defined in paragraphs (1) and

(3)(i) of this subsection [(h) of this section, to operate all

or a portion of its business during a regularly recurring period

of one hundred eighty (180) days of work or less for a normal

seasonal period during a calendar year]; or

(ii)  a seasonal industry as defined in paragraph (3)(ii) of

this subsection.

An employer may be determined to be engaged in a seasonal

industry as defined in this section, with respect to a portion

of its business, only if that portion, under the usual and

customary practice in the industry, is identifiable as a

functionally distinct operation.

(5)  "Seasonal worker" means a worker who performs:

(i)  commercial canning or commercial freezing services for a

fruit or vegetable food processing operation for less than one

hundred eighty (180) days of work[.]; or

(ii)  services for a recreational business.

(6)  "Recreational business" means any golf course, ski area,

amusement park, campground or other recreational operation which

is seasonal in nature.

Section 6.  Section 404 introductory paragraph, (a), (c), (d)

(1) and (e)(1) and (2) of the act, amended January 17, 1968

(P.L.21, No.6), July 10, 1980 (P.L.521, No.108), July 21, 1983

(P.L.68, No.30), October 19, 1988 (P.L.818, No.109) and December

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

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

shall be paid to each eligible employe in accordance with the

following provisions of this section except that compensation

payable with respect to weeks ending in benefit years which

begin prior to the first day of January [1989] 2010 shall be

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

the beginning of such benefit years.

(a)  [(1)]  The employe's weekly benefit rate shall be

computed as [(1) the amount appearing in Part B of the Table

Specified for the Determination of Rate and Amount of Benefits

on the line on which in Part A there appears his "highest

quarterly wage," or (2)] fifty per centum (50%) of his [full-

time weekly] average working wage[, whichever is greater.] in

the employe's base year: Provided the employe's base year wages

are sufficient to qualify for the minimum weekly benefit of

thirty-five dollars ($35) or more. If the employe's weekly

benefit rate is not a multiple of one dollar ($1), it shall be

rounded to the next lower multiple of one dollar ($1).

[(2)  If the base year wages of an employe whose weekly

benefit rate has been determined under clause (2) of paragraph

(1) of this subsection are insufficient to qualify him under

subsection (c) of this section, his weekly benefit rate shall be

redetermined under clause (1) of paragraph (1) of this

subsection.

(3)  If the base year wages of an employe whose weekly

benefit rate has been determined under clause (1) of paragraph

(1) of this subsection, or redetermined under paragraph (2) of

this subsection, as the case may be, are insufficient to qualify

him under subsection (c) of this section but are sufficient to

qualify him for any one of the next three lower weekly benefit

rates, his weekly benefit rate shall be redetermined at the

highest of such next lower rates.]

* * *

(c)  [Any] The total amount of benefits to which an otherwise

eligible employe [who has base year wages in an amount equal to,

or in excess, of the amount of qualifying wages appearing in

Part C of the Table Specified for the Determination of Rate and

Amount of Benefits on the line on which in Part B there appears]

is entitled his weekly benefit rate, as determined under

subsection (a) of this section, [shall be entitled during his

benefit year to the amount appearing in Part D on said line]

multiplied by the number of qualifying credit weeks during his

base year, up to a maximum of twenty-six (26): Provided he had

eighteen (18) or more "credit weeks" during his base year [or

Part E provided he had sixteen (16) or seventeen (17) "credit

weeks" during his base year]. Notwithstanding any other

provision of this act, any employe with less than [sixteen (16)]

eighteen (18) "credit weeks" during the employe's base year

shall be ineligible to receive any amount of compensation.

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

section each eligible employe who is unemployed with respect to

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

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

weekly benefit rate less the total of all of the following:

(i)  [the] The remuneration, if any, paid or payable to him

with respect to such week for services performed which is in

excess of his partial benefit credit [and].

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

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

is permanently or indefinitely separated from his employment.

(iii)  Severance pay if any, which is in excess of his

partial benefit credit. For purposes of this subclause, all of

the following apply:

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

weeks immediately following the employe's separation.

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

attributed is determined by dividing the total amount of

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

the claimant.

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

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

claimant.

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

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

customary working days in the calendar week.

* * *

(e)  [(1)  Table Specified for the Determination of

Rate and Amount of Benefits

*(this figure subject to section 401(a)).]

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

and Amount of Benefits shall be extended or contracted annually,

automatically by regulations promulgated by the secretary in

accordance with the following procedure: for calendar year one

thousand nine hundred seventy-two and for all subsequent

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

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

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

period ending June 30 preceding each calendar year. If the

maximum weekly benefit rate is not a multiple of one dollar

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

rounded to the next lower multiple of one dollar ($1).[:

Provided, however, That effective with benefit years beginning

the first Sunday at least thirty days after the effective date

of this amendatory act, the per centum stated in this paragraph

for establishing the maximum weekly benefit rate shall be sixty-

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

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

thirds per centum for the calendar year one thousand nine

hundred seventy-five, and sixty-six and two-thirds per centum

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

for all subsequent calendar years.

The Table Specified for the Determination of Rate and Amount

of Benefits as so extended or contracted shall be effective only

for those claimants whose benefit years begin on or after the

first day of January of such calendar year.]

(ii)  For the purpose of determining the maximum weekly

benefit rate, the Pennsylvania average weekly wage in covered

employment shall be computed on the basis of the total wages

reported (irrespective of the limit on the amount of wages

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

month period ending June 30 and this amount shall be divided by

the average monthly number of covered workers (determined by

dividing the total covered employment reported for the same

[fiscal year by twelve] thirty-six-month period by thirty-six)

to determine the average annual wage. The average annual wage

thus obtained shall be divided by fifty-two and the average

weekly wage thus determined rounded to the nearest cent. If the

maximum weekly benefit rate as determined under paragraph (i) of

this subsection is less than the maximum weekly benefit rate

established for calendar year 2009, the maximum weekly benefit

rate will be frozen until the calendar year in which the new

maximum weekly benefit rate as determined under paragraph (i) of

this subsection exceeds the maximum weekly benefit rate for

calendar year 2009.

* * *

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

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

Section 505.  Rules of Procedure.--(a)  The manner in which

appeals shall be taken, the reports thereon required from the

department, the claimant and employers, and the conduct of

hearings and appeals, shall be in accordance with rules of

procedure prescribed by the board whether or not such rules

conform to common law or statutory rules of evidence and other

technical rules of procedure.

(b)  When the same or substantially similar evidence is

relevant and material to the matter in issue in applications and

claims filed by more than one individual or in multiple

applications and claims filed by a single individual the same

time and place for considering each such application and claim

may be fixed, hearings thereon jointly conducted, a single

record of the proceedings made and evidence introduced with

respect to any application or claim considered as introduced

with respect to all of such applications or claims: Provided,

That in the judgment of the board or referee having jurisdiction

of the proceeding such consideration will not be prejudicial to

any party.

(c)  (1)  Where the appellant, after having been duly

notified according to law as to the time and place of the

hearing, fails to appear for the hearing without giving prior

notification of inability to appear, the referee shall dismiss

the appeal and need not receive any testimony or evidence as to

the merits of the case or issue any decision with regard to the

merits of the case. If the appellant believes his appeal was

dismissed improperly, the appellant may file a further appeal to

the board, pursuant to law.

(2)  If the appellant in his appeal to the board fails to

advance proper cause for his failure to appear timely for the

referee's hearing, the board shall dismiss the appeal and need

not issue any decision with regard to the merits of the case. If

the appellant in his appeal to the board alleges proper cause

for failure to appear in a timely manner for the referee's

hearing and the board believes proper cause may exist, the board

may remand the matter to a referee to act as a hearing officer

for the board. The only issue to be heard at such hearing shall

be the appellant's reason for his failure to appear at the

initially scheduled hearing in a timely manner. The referee,

acting for the board, may not receive any testimony or evidence

regarding the merits of the case.

(3)  If the board, after receiving testimony or evidence

regarding the appellant's failure to appear in a timely manner

for the initial referee's hearing, determines that proper cause

existed for the appellant's failure to appear in a timely manner

for the initial referee's hearing, the board shall at that time

remand the matter to a referee once more to act as a hearing

officer for the board. The referee shall conduct a de novo

hearing regarding the merits of the case and shall issue a

decision on the merits of the case. The referee's decision may

be appealed in accordance with the provisions of law.

Section 8.  The amendment of sections 401(b) and (f), 402(b)

and (e), 402.5, 404(a), (c) and (d)(1) and 505 of the act shall

apply only to claims initially filed either on or after the

effective date of this section.

Section 9.  This act shall take effect January 1, 2010.