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An Act To Revise Laws Regarding Unemployment That Were Amended or Affected by Recently Enacted Legislation
Emergency preamble. Whereas, acts and resolves of the Legislature do not become effective until 90 days after adjournment unless enacted as emergencies; and
Whereas,  the State's biennial budget was enacted and signed into law as an emergency measure on July 4, 2017; and
Whereas,  the biennial budget made changes to the laws governing unemployment compensation, and this legislation makes changes to those laws that are necessary for their proper administration; and
Whereas,  in the judgment of the Legislature, these facts create an emergency within the meaning of the Constitution of Maine and require the following legislation as immediately necessary for the preservation of the public peace, health and safety; now, therefore,
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 26 MRSA §1221, sub-§3, ¶A, as amended by PL 2017, c. 284, Pt. CCCCC, §2, is further amended to read:
 
A. At the time the status of an employing unit is ascertained to be that of an employer, the commissioner shall establish and maintain, until the employer status is terminated, for the employer an experience rating record, to which are credited all the contributions that the employer pays on the employer's own behalf. This chapter may not be construed to grant any employer or individuals in the employer's service prior claims or rights to the amounts paid by the employer into the fund. Benefits paid to an eligible individual under the Employment Security Law must be charged against the experience rating record of the claimant's most recent subject employer, except that, beginning January 1, 20182020, benefits paid to an eligible individual under the Employment Security Law must be charged against the experience rating record of the claimant's employers in inverse chronological order in a ratio inversely proportional to the claimant's employment beginning with the most recent employer in the base period, or to the General Fund if the otherwise chargeable experience rating record is that of an employer whose status as such has been terminated; except that no charge may be made to an individual employer but must be made to the General Fund if the commission finds that:
 
(1) The claimant's separation from the claimant's last employer was for misconduct in connection with the claimant's employment or was voluntary without good cause attributable to the employer;
 
(2) The claimant has refused to accept reemployment in suitable work when offered by a previous employer, without good cause attributable to the employer;
 
(3) Benefits paid are not chargeable against any employer's experience rating record in accordance with section 1194, subsection 11, paragraphs B and C;
 
(5) Reimbursements are made to a state, the Virgin Islands or Canada for benefits paid to a claimant under a reciprocal benefits arrangement as authorized in section 1082, subsection 12, as long as the wages of the claimant transferred to the other state, the Virgin Islands or Canada under such an arrangement are less than the amount of wages for insured work required for benefit purposes by section 1192, subsection 5;
 
(6) The claimant was hired by the claimant's last employer to fill a position left open by a Legislator given a leave of absence under chapter 7, subchapter 5-A, and the claimant's separation from this employer was because the employer restored the Legislator to the position after the Legislator's leave of absence as required by chapter 7, subchapter 5-A;
 
(7) The claimant was hired by the claimant's last employer to fill a position left open by an individual who left to enter active duty in the United States military, and the claimant's separation from this employer was because the employer restored the military serviceperson to the person's former employment upon separation from military service;
 
(8) The claimant was hired by the claimant's last employer to fill a position left open by an individual given a leave of absence for family medical leave provided under Maine or federal law, and the claimant's separation from this employer was because the employer restored the individual to the position at the completion of the leave; or
 
(9) The claimant initiated a partial separation or reduction of hours and that partial separation or reduction of hours was agreed to by the employee and employer.
Sec. 2.  26 MRSA §1221, sub-§3, ¶C-2  is enacted to read:
 
C-2.  For the purposes of paragraph A, the experience rating record of the most recent subject employer may not be charged with benefits paid to a claimant whose work record with that employer totaled 5 consecutive weeks or less of total or partial employment; in that case the most recent subject employer with whom the claimant's work record exceeded 5 consecutive weeks of total or partial employment must be charged if that employer would have otherwise been chargeable had not subsequent employment intervened. This paragraph is repealed January 1, 2020.
Sec. 3. 26 MRSA §1221, sub-§4-A, ¶C, as amended by PL 2007, c. 352, Pt. A, §2, is further amended to read:
 
C. The commissioner shall:
 
(1) Promptly notify each employer of the employer's rate of contributions as determined for the 12-month period commencing January 1st of each year. The determination is conclusive and binding upon the employer unless within 30 days after notice of the determination is mailed to the employer's last known address or, in the absence of mailing, within 30 days after the delivery of the notice, the employer files an application for review and redetermination, setting forth the employer's reasons. If the commissionDivision of Administrative Hearings grants the review, the employer must be promptly notified and must be granted an opportunity for a hearing. An employer does not have standing in any proceedings involving the employer's rate of contributions or contribution liability to contest the chargeability to the employer's experience rating record of any benefits paid in accordance with a determination, redetermination or decision pursuant to section 1194, except upon the ground that the services for which benefits were found to be chargeable did not constitute services performed in employment for the employer and only when the employer was not a party to the determination, redetermination or decision or to any other proceedings under this chapter in which the character of the services was determined. The employer must be promptly notified of the commission'sDivision of Administrative Hearings' denial of the employer's application or the commission'sDivision of Administrative Hearings' redetermination, both of which are subject to appeal pursuant to Title 5, chapter 375, subchapter 7; and
 
(2) Provide each employer at least monthly with a notification of benefits paid and chargeable to the employer's experience rating record. In the absence of an application for redetermination filed in the manner and within the period prescribed by the commissioncommissioner, a notification is conclusive and binding upon the employer for all purposes. A redetermination made after notice and opportunity for hearing and the commission'sDivision of Administrative Hearings' findings of fact may be introduced in subsequent administrative or judicial proceedings involving the determination of the rate of contributions of an employer for the 12-month period commencing January 1st of any year and has the same finality as provided in this section with respect to the findings of fact made by the commissionDivision of Administrative Hearings in proceedings to redetermine the contribution rates of an employer.
Sec. 4. 26 MRSA §1221, sub-§11, ¶D, as amended by PL 1979, c. 651, §28, is further amended to read:
 
D. The amount due specified in any assessment from the commissioner shall beis conclusive on the employer or governmental entity, unless not later than 15 days after the assessment was mailed to the last known address, the employer or governmental entity files an application for redetermination by the commissionDivision of Administrative Hearings setting forth the grounds for such application.
Sec. 5. 26 MRSA §1225, sub-§2, as amended by PL 1993, c. 312, §3, is further amended to read:
 
2. Jeopardy assessment.   If the Director of Unemployment Compensation determines that the collection of any contribution, interest or penalty under this subchapter, as amended, will be jeopardized by delay, the director may immediately assess the contributions, interest or penalties, whether or not the time prescribed by law or any rules issued pursuant to section 1082, subsection 2, for making reports and paying the contributions has expired, and shall give written notice of the assessment to the employer. In these cases, the right to appeal to the commissionDivision of Administrative Hearings, as provided in section 1226, is conditioned upon payment of the contributions, interest or penalties so assessed, or upon giving appropriate security to the commissioner for the payment thereof.
Sec. 6. 26 MRSA §1232, sub-§2, as enacted by PL 1993, c. 312, §5, is amended to read:
 
2. Failure to file or pay taxes; determination to prevent renewal, reissuance or other extension of license or certificate.   If the commissioner determines that an employer who holds a state-issued license or certificate of authority to conduct a profession, trade or business has failed to file a return at the time required under this chapter or has failed to pay a tax liability due under this chapter that has been demanded, and the employer continues to fail to file or pay after at least 2 specific written requests to do so, the commissioner shall notify the employer in writing by certified mail, return receipt requested, that refusal to file the required tax return or to pay the overdue tax liability may result in loss of license or certificate of authority.
 
This written notice must include information about the opportunity to request a fact-finding interview for the purpose of determining essential facts, negotiating a payment agreement and determining the appropriateness of further enforcement under this section.
 
If the employer requests a fact-finding interview within 30 days, the commissioner shall schedule the interview at which the commissioner shall attempt to negotiate a reasonable payment agreement. The employer must be notified in writing if the commissioner's determination is to prevent renewal, reissuance or extension of the license or certificate of authority by the issuing agency. If the employer enters into a payment agreement, a determination may not be made under this section until the employer fails to comply with the agreement.
 
If the employer continues, for a period in excess of 30 days from notice of possible denial of renewal or reissuance of a license or certificate of authority, to fail to file or show reason why the person is not required to file or if the employer continues not to pay, the commissioner shall notify the employer in writing of the determination to prevent renewal, reissuance or extension of the license or certificate of authority by the issuing agency.
 
A review of the determination is available by filing an appeal under section 1226 to the Maine Unemployment Insurance CommissionDivision of Administrative Hearings. Either by failure to proceed to the next step of appeal or by exhaustion of the steps of appeal, the determination of the commissioner's right to prevent renewal or reissuance becomes final unless otherwise determined by appeal.
 
In any event, the license or certificate of authority in question remains in effect until all appeals are taken to their final conclusion. This subsection may not be invoked for any tax liability under appeal.
Emergency clause.  In view of the emergency cited in the preamble, this legislation takes effect when approved.
 
SUMMARY
This bill changes the laws governing how benefits paid to an eligible individual under the Employment Security Law are charged against the experience rating record of the individual's previous employers and applies these changes beginning January 1, 2020. The biennial budget also changed this law and applied the changes beginning January 1, 2018. The bill also provides that until January 1, 2020 the experience rating record of the most recent subject employer may not be charged with benefits paid to an eligible individual whose work record with that employer totaled 5 consecutive weeks or less.
This bill also provides that certain decisions made by the Commissioner of Labor are subject to review by the Department of Labor, Division of Administrative Hearings, rather than by the Maine Unemployment Insurance Commission.