No. 27469 (Repeal and Reenact): R994-401. Payment of Benefits

DAR File No.: 27469
Filed: 10/01/2004, 04:29
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

This proposed repeal and reenactment is to update the rule to conform to current practices and the changes in technology and law.

 

Summary of the rule or change:

The Department is in the process of rewriting all of its rules to insure they conform to current practice and law. The Department determined to proposed a repeal and reenactment because some sections and provisions in this rule were moved to a different rule, most of the rule numbers changed, and some of the sections referred to antiquated practices before the advent of telephone claims and computers. Crossing out and underlining would have been too complicated and confusing. While some sections have been moved to other rules filed for this same issue, there are no substantive changes to procedure or eligibility contemplated by this rule change. (DAR NOTE: The other rules filed for this issue are: the proposed amendment to Section R994-201-101 under DAR No. 27470; the repeal and reenactment of Rule R994-403 under DAR No. 27471; the proposed amendment of Rule R994-405 under DAR No. 27472; and the proposed amendment to Section R994-406-505 under DAR No. 27473.)

 

State statutory or constitutional authorization for this rule:

Title 35A, Chapter 103; and Title 35A, Chapter 401

 

Anticipated cost or savings to:

the state budget:

There will be no costs or savings to the State budget because this is a federally-funded program and there are no substantive changes being made to this rule. These changes reflect current Department practices.

 

local governments:

In addition to the reasons stated in relation to the State budget, there will be no costs or savings to local government as this is a federally-funded, state-wide program that does not affect local government.

 

other persons:

There will be no costs or savings to any person for the reasons stated in relation to the State budget. This proposed repeal and reenactment does not make any substantive changes to current law or rule.

 

Compliance costs for affected persons:

There will be no compliance costs to any person for the reasons stated in relation to the State budget. This proposed repeal and reenactment does not make any substantive changes to current law or rule.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

This proposed repeal and reenactment will have no fiscal impact on business as there are no compliance costs and the rule merely reflects current statutory authority.

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Workforce Services
Workforce Information and Payment Services
140 E 300 S
SALT LAKE CITY UT 84111-2333

 

Direct questions regarding this rule to:

Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

11/15/2004

 

This rule may become effective on:

11/16/2004

 

Authorized by:

Raylene G. Ireland, Executive Director

 

 

RULE TEXT

R994. Workforce Services, Workforce Information and Payment Services.

R994-401. Payment of Benefits.

[R994-401-101. Bi-Weekly Payment of Benefits - General Definition.

Eligibility for benefits is established with regard to a calendar week. Benefits shall be paid on a bi-weekly basis. Therefore, benefits will not become due until the end of a two-week period for which benefits are claimed in accordance with Section 35A-4-401 governing the filing of claims.

 

R994-401-201. Weekly Benefit Amount - General Definition.

Section 35A-4-401 outlines the procedure for determining the Weekly Benefit Amount (WBA) and the Maximum Benefit Amount (MBA) which an eligible claimant can receive and establishes the provisions for recomputations based on retirement income. Claimants are instructed when filing the initial claim to report all base period employers. Employers are required by law to report to the Department the wages paid to all employees. Wage information is requested from the employers listed by the claimant if wages have not already been reported for the claimant by that employer. Based on the wage information reported by the employers which the claimant listed on his initial claim, a determination is made of his Weekly Benefit Amount which is called his "monetary determination." When the regular monetary determination is made, the claimant is sent notification of the wages reported by the employers and he is told of his appeal rights. The claimant is also told that he may lose all rights to adjustment to the monetary determination if he does not notify the Department of errors or omissions within the time permitted for an appeal. Employers are notified as to the wages used in determining a claimant's monetary determination, the employer's potential liability for benefit costs, and the time limitation for requesting relief of charges or correction of the wages. The employer's tax rate is dependent upon the proportion of the claimant's base period wages paid by that employer and the amount of benefits actually received by the claimant. The employer is also given a second opportunity to report to the Department any errors or omissions. When a second notice is sent to the employer he is given 30 days as provided by Subsection 35A-4-306(3) to advise the Department of any corrections.

 

R994-401-202. Total Wages.

The total wages used to determine the Weekly Benefit Amount are limited to wages reported to the Department by base period employers and verifiable wages paid by additional base period employers reported by the claimant on his initial claim form.

R994-401-203. Revision of Monetary Determination.

(1) After a claimant has been notified by a Monetary Determination of the amount of the weekly and maximum benefits for which he may be eligible, and the employer has been notified of the wages used in determining his potential liability for benefit costs, a revision of the monetary determination will be made consistent with rules pertaining to Subsection 35A-4-403(1)(e) only when:

(a) the appellant, either the claimant or employer, files an appeal within the time limitations established by the act for filing appeals, or the appellant has shown good cause for filing the appeal late in accordance with the regulations under Subsection 35A-4-406(3) which limit good cause for late appeals, or

(b) the appellant can show good cause for failure to accurately report the base period employment, or

(c) the Department may exercise continuing jurisdiction based upon a mistake as to the facts, but the exercise of this jurisdiction is discretionary with the Department.

(2) As a general rule, the Department will not revise a monetary determination when the request is made by the party who will benefit by that revision if that party has had a previous opportunity to appeal and has failed to show good cause for not filing a timely appeal. The Department may exercise its jurisdiction based upon knowledge of a mistake as to facts if the revision would be substantial and required by fairness for a party who did not have access to the information and therefore could not reasonably have filed a timely appeal. No redetermination will be made if the claimant has received Extended Benefits unless a redetermination would provide sufficient regular benefits to offset the payments made on the Extended Benefit program.

 

R994-401-204. Wages Paid.

"Wages paid" include those wages actually received by the worker and wages constructively paid without regard to the ending date of the pay period, provided the employer's liability for payment has become unconditionally established. Wages are considered constructively paid on the earliest of: the next regular pay day in accordance with the employer's customary payment practices, the day required by contractual agreement, or as required by state law.

 

R994-401-205. Wages Paid During the Quarter.

"Wages paid during the quarter" are all regular wages paid within the calendar quarter. Special payments made within the quarter which were not due on any specific day shall be treated as wages paid during the quarter in which the payment is made unless a written request is made by the claimant for apportionment to the calendar quarters in which the remuneration was earned and the request is received by the Department within ten days of the issuance of the monetary determination as provided by Subsection 35A-4-401(7) of the Utah Employment Security Act.

 

R994-401-206. Calendar Quarter.

Calendar quarter means the period of three consecutive calendar months ending on March 31, June 30, September 30, or December 31.

 

R994-401-207. Retirement or Disability Retirement Income.

(1) A claimant's weekly benefit amount is reduced by 100% of any retirement benefits, social security, pension or disability retirement pay (referred to collectively in this section as "retirement benefits" or "retirement pay") received by the claimant. Except, for social security retirement benefits, the reduction is 50% for claims with an effective date on or after July 4, 2004 and on or before July 2, 2006. The payments must be:

(a) from a plan contributed to by a base-period employer. Payments made by the employer for whom the claimant did not work during the benefit year are not counted. Social security payments are counted if a base period employer contributed to social security even if the social security payment is not based on employment during the base period.

(b) based on prior employment and the claimant qualifies because of age, length of service, disability or any combination of these criteria. Disability payments must be based, at least in part, by length of service. Savings plans such as a 401(k), or IRA should not be used to reduce the weekly benefit amount. Payments from worker's compensation for temporary disability, black lung disability income, and benefits from the Department of Veterans Affairs are not counted because the amount of the payment is based on disability and not on length of service. Payments received as a spouse or beneficiary are not counted. That portion of retirement benefits payable to a claimant's former spouse is not counted if the paying entity pays the former spouse directly and it is pursuant to court order or a signed, stipulated agreement in accordance with the law;

(c) periodic and not made in a lump sum. Lump sum payments, even if drawn from the employer's contributions to a fund established for the purpose of retirement, are not treated as severance pay under 35A-4-405(7); and

(d) payable during the benefit year. A claimant's WBA is not reduced if the claimant is eligible for, but not receiving retirement income. However, if the claimant subsequently receives a retroactive payment of retirement benefits which, if received during the time unemployment insurance claims were filed would have resulted in a reduced payment, an overpayment will be established. The period of time the payment represents, not the time of the receipt, is the determining factor. An assumption that a claimant is entitled to receive a pension, even if correct, is not sufficient basis to recompute the Weekly Benefit Amount. However, if a claimant has applied for a pension and expects to be determined eligible for a specific amount attributable to weeks when Unemployment Insurance benefits are payable, and the claimant is only awaiting receipt of those payments, a reduction of the claimant's Weekly Benefit Amount will be made.

(2) A claimant who could be eligible for a retirement income, but chooses not to apply until after the Unemployment Insurance benefits have been paid, will be at fault for any overpayment resulting from a retroactive payment of retirement benefits.

(3) The formula for recomputation of the Maximum Benefit Amount in the event a claimant begins receiving retirement income after the beginning of the benefit year is found in 35A-4-401(2)(d).

 

R994-401-301. Partial Payments - General Definition.

(1) A claimant who is working less than full time can earn up to 30% of his Weekly Benefit Amount (WBA) without any reduction in the benefit payment. The claimant's gross earnings which are more than 30% of the WBA will be deducted dollar for dollar with respect to any claim filed. A claimant who earns less than his WBA and files a claim may be credited with a waiting week, or paid a part payment. A claimant who earns equal to or more than his WBA will not be credited with a waiting week nor be eligible for any part payment for that week.

(2) All work and earnings must be reported with respect to a specific week. For example, when an otherwise eligible claimant is required to report income from a farm, and is paid one day of holiday pay from a former employer, and then he accepts a one day temporary job, the work and earnings from all three sources must be reported. The accumulated earnings reported by the claimant in excess of 30% of his WBA will be deducted from the payment for that week. If the total earnings are equal to or in excess of the WBA, no payment would be made.

(3) Reportable earnings which a claimant must report on the weekly claim includes any and all wages, remuneration, or compensation for services even if the employer is not required to pay contributions on these wages.

 

R994-401-302. Liability of Part-time Concurrent Reimbursable Employers.

(1) If the claimant worked concurrently for two or more employers during his base period and is separated from one or more of these employers, but continues in his regular part-time work with a reimbursable employer, his Weekly Benefit Amount will be determined on the basis of his total base period employment and earnings. However, his Maximum Benefit Amount for the Benefit year will be based solely on the employment from the separating employer excluding the employment and earnings from the part-time reimbursable employer. The non-separating employer will not be liable for benefits paid provided: 1) the employer makes a written request within ten days of the first notification of the employer's potential liability, and 2) the hours of work have not been reduced below the least number of hours normally worked during the base period of the claim, and 3) the claimant is not working on an "on call" basis. If the claimant is also separated from this employer within the benefit year or the claimant's hours of work are reduced below the least number of hours worked during the base period, the reimbursable employer will be liable to pay the proportionate amount of benefit payments paid thereafter.

(a) For example: The claimant has two base period employers for whom he worked concurrently, one full-time where he earned $8,000 and was separated and one part-time reimbursable employer where he earned $2,000 and is still working. If his high quarter earnings were $2,500, his weekly benefit amount would be $96 per week using the base period wages from both employers. However, under this rule, the Maximum Benefit Amount (MBA) is determined only by using the wages from the employer from whom he is separated, in this case, the total base period wages from the separating employer are only $8,000. The MBA is determined by taking 27% of the $8,000 which is $2,160 divided by the full WBA ($96) which equals 22.5 or 22 weeks of benefits. Therefore, the claimant's WBA is 22 x $96 or $2,112 and the part-time employer is relieved of any benefit costs until the claimant is separated from this employer. The weekly payment is determined by reducing the claimant's WBA by that portion of his weekly earnings in excess of 30% of his WBA. In this example the claimant must report all of his earnings, but only those earnings of over $28 which is 30% OF $96, will be deducted from his weekly payment.

(2) If the claimant is separated within the benefit year from the remaining employment, a new Monetary Determination can be made at the request of the claimant and would include all base period wages. The effective date of the Revised Monetary Determination will be the first day of the week in which the request is made.

 

R994-401-303. Income Which Is Reportable.

(1) All payments whether an hourly wage, salary, or commission paid for the performance of any service shall be reportable as a wage unless specifically identified as an exception in Sections R994-401-304 and R994-401-305.

(2) Any payments in kind which are remuneration for services performed by an employee as a part of wages, or wholly comprises an employee's wages must be reported and shall be determined as follows:

(a) If a cash value for meals, lodging or other payment is to promote good will or to attract prospective employees, except where the payments are for the convenience of the employer as identified in Subsection R994-401-305(1), the amount agreed upon by contract shall be deemed the value of any meals, lodging or other payment provided the value equals or exceeds the cash value prevailing under similar conditions in the locality.

(b) If a cash value for any meals, lodging or other payment for service as identified in the preceding paragraph, is not agreed upon, the Department may determine or approve, on the basis of prevailing amounts paid under similar conditions in the locality, the cash value.

(c) Gratuities or tips paid directly to an employee by a customer or his employer for a service provided.

(d) Where an employee is hired with work equipment, the fair value of the employee's services, as distinguished from an allowance for use of his equipment, if specified in the contract of hire, shall be considered "wages". If the contract of hire does not specify the employee's wages, or the value of wages agreed upon under the contract of hire is not a fair value, the Department shall determine the employee's wages taking into consideration the prevailing wages for similar work under comparable conditions.

 

R994-401-304. Income Which May Not Be Reportable.

(1) Bonus.

A bonus is given to an employee in addition to his usual wages. If paid as a direct result of past performance of service or for a specific prior period it is not a wage with respect to a week after the claimant was separated. If the payment is made contingent upon termination it is a wage with respect to the week or weeks after the individual has been separated. Payments given at the time of separation that are based on years of service will be considered severance payment and reportable in accordance with Subsection 35A-4-405(7).

(2) Training Allowances.

Some employers may require training as a prerequisite to employment even though a job may not be guaranteed at the end of the training. Learning a new job may be considered a service, for example: on-the-job training or in-service training, will be considered to be service rendered for wages. Any payment made in consideration of training is considered to be wages unless shown to be:

(a) expenses necessary for school; for example, tuition, fees, and books;

(b) travel expenses;

(c) actual costs for room and board where costs are created as a necessary expense for the schooling;

(d) payments exempt from income tax liability;

(e) payments not directly related to the number of hours of training, provided the claimant is not eligible for regular employee benefits, including sick pay, vacation pay, insurance programs.

(3) Contractual Obligations.

Money or other things of monetary value paid to or received by an individual not in consideration of services performed or for the holding of himself available ordinarily are not wages. However, in contractual situations where an individual is paid for the express reason of being available to an employer, and there are either limits placed upon the individual as to how much earnings, if any, may be earned while receiving these payments, or on the time the individual must hold himself available to the employer the payment would be considered reportable wages.

 

R994-401-305. Income Which Is Not Reportable.

Payments which are received for reasons other than the performance of a service are not wages. Some examples are:

(1) Meals and lodging: When provided by an employer to an employee, if excluded from the definition of wages by the Internal Revenue Service as under the following conditions:

(a) Meals that are furnished:

(i) on the business premises of the employer;

(ii) for the convenience of the employer;

(iii) without charge for substantial non-compensatory business reasons, not for the purpose of additional compensation. Substantial noncompensatory business reasons will be limited to meals:

(A) to have employees available for emergency call;

(B) to have employees with restricted lunch periods;

(C) because adequate eating facilities are not otherwise available;

(iv) subject to charge:

(A) which an employee may or may not purchase;

(B) for which an employer charges an unvarying amount whether the meal is taken or not.

(b) Lodging that is furnished:

(i) on the business premises of the employer;

(ii) as a condition of employment;

(iii) for the convenience of the employer; for example, to have an employee available for call at any time.

(2) Payments from corporate stocks and bonds;

(3) Pensions: If not contributed to or maintained by base period employers or not based solely on service; for example, a disability pension from the Department of Veteran's Affairs;

(4) Public service in lieu of payment of fines: The court system in Utah does not assign monetary value to public service. Any fine assessed by the court is considered to be waived in lieu of public service. The issue of benefit payment will be decided on the basis of the rule which deals with voluntary workers, Section R994-207-107;

(5) Jury and witness fees: Fees paid for jury duty or as witness fees will be considered reimbursement for expenses;

(6) Expenses: Amounts paid specifically, either as an advance or reimbursement, for bona fide, ordinary and necessary expenses incurred or reasonably expected to be incurred in the business of the employer. If an accounting by the employee is not required by the employer for actual expenses, the Department shall not require itemization;

(7) Grants, public or private assistance or other support payments; Payments that are specifically identifiable as not being provided for the rendering of service will not be considered wages;

(8) Money or other considerations which are normally provided as a matter of course to immediate family members;

(9) Income from investments;

(10) Disability awards under the Workmen's Compensation Act.

 

R994-401-601. Notification of Eligibility Determination - General Definition.

The purpose of Sections R994-401-601 through R994-401-604 is to provide notification to employers of decisions made by the Department, so that employers who have information or concerns will have an opportunity to provide information and appeal decisions. The primary objectives of a benefit ratio tax are to increase incentives for employer participation in providing adequate information for determining eligibility, for program improvement and to make building and maintaining a solvent reserve fund the responsibility of those employers who use the system. However, since the most recent employer may not be in the base period and therefore not subject to charges, other employers should be notified of the issues that involve them.

 

R994-401-602. Notification to the Most Recent Employer.

"Prior to the payment of benefits" is considered to mean at the initial point of the claim before payment of any benefits is made. Therefore, when an initial claim is filed, the most recent employer will be notified of decisions made on every issue.

 

R994-401-603. Notification at Time of Initial Claim.

At the time an initial claim is filed, all employers from the beginning of the base period to the time of the filing of the claim are entitled to notice as provided by Section 35A-4-306(2).

 

R994-401-604. Notification to Involved Employers.

(1) Employers who make a written protest of payment of benefits on any grounds will be notified of the decision made with regard to that issue.

(2) Notification will be given during the course of the claim to employers who have or reasonably could be expected to have information with regard to any issue involving eligibility for benefits including issues under: Subsections 35A-4-403(3) deferrals due to employer attachment, 35A-4-405(1) voluntary separations, 35A-4-405(2) discharges, 35A-4-405(3) failure to obtain employment, 35A-4-405(4) strikes, 35A-4-403(2) school and Department approval, 35A-4-405(7) separation payments, 35A-4-405(8) reasonable assurance of continued employment for school employees, 35A-4-405(9) contractual attachment of athletes, 35A-4-405(10) eligibility of aliens. Involved employers will be notified of information reported by the claimant and the employer will be given an opportunity to provide a rebuttable or additional information prior to the rendering of a decision. Any employer who provides information will be advised of the decision and given appeal rights.]

R994-401-101. Payment of Benefits.

Eligibility is established and benefits are paid on a weekly basis. The week starts on Sunday and ends on Saturday. Benefits do not become due until the end of the week for which benefits are claimed.

 

R994-401-201. Weekly Benefit Amount (WBA), Maximum Benefit Amount (MBA), and Monetary Determination.

(1) The formulas for determining the WBA and the MBA are found in Section 35A-4-401.

(2) The wages used to determine the WBA and the MBA are limited to wages reported to the Department by base period employers and verifiable wages paid by additional base period employers reported by the claimant in the initial claim. If an employer does not report wages and the claimant can verify wages from that employer, those wages may be included.

(3) The Department will send the claimant a "Notice of Monetary Determination." The notice will inform the claimant of the WBA, MBA, and the wages used to determine the claimant's monetary eligibility. The notice will also inform the claimant of his or her right to appeal the monetary determination. The claimant must notify the Department of any errors in the monetary determination. The time limit for notifying the Department of any errors or for appealing a monetary determination is the same as filing an appeal from an initial Department determination and is governed by rules R994-508-102 through R994-508-104.

(4) The monetary determination is based on the wages actually paid during the base period regardless of when the work was performed.

(5) To be monetarily eligible, a claimant must have earned base period wages of 1 and 1/2 times the high quarter wages and also meet a minimum dollar amount as established by the monetary base period wage requirement as defined in Section 35A-4-201.

(6) If a claimant is not monetarily eligible under the 1 and 1/2 times requirement in paragraph (5) of this section, but meets the monetary base period wage requirement, the claimant can still be eligible under this section if the claimant had earnings of at least five percent of the "monetary base period requirement for insured work," as defined in Subsection 35A-4-201(17), in each of at least 20 weeks during the base period. The earnings must be for work performed during each of the 20 weeks, all of which must fall within the base period, regardless of when the claimant received payment for the work. The requirement that the claimant show work and earnings in 20 weeks is only met if the claimant was paid wages as defined by the definition of "wages paid" in R994-401-202.

(7) The dollar amount for each of the 20 weeks required to establish eligibility will be determined by the monetary base period requirement for insured work in effect for the calendar year in which the initial claim is filed even if some or all of the 20 weeks are in a different calendar year.

(8) If the claimant is determined monetarily ineligible under the 1 and 1/2 times standard, it is the claimant's responsibility to show 20 weeks of covered employment which meet the minimum dollar amount. Acceptable proof of covered employment includes:

(a) appropriately dated check stubs issued by the employer;

(b) a written statement from the employer showing dates of employment and the amount of earnings for each week;

(c) time cards;

(d) canceled payroll checks; or

(e) personal or business records kept in the normal course of employment that would substantiate work and earnings.

(9) An employer's potential liability is based on its proportion of the claimant's base period wages. Employers will be informed of the wages used in determining a claimant's monetary entitlement, the employer's potential liability for benefits costs, and the right to and time limitation for requesting relief of charges or a correction to wages. A contributory employer is given a notice of all benefit costs each quarter and has the opportunity to report any errors or omissions to the Department at that time as well. The quarterly notices give the employer 30 days to advise the Department of any corrections, as provided in Subsection 35A-4-306(3).

(10) A party failing to file a timely appeal or protest may lose its right to have the monetary determination corrected. An untimely appeal or protest may be considered if the party had good cause, as defined in R994-508-104.

(11) The Department may revise the monetary determination after the expiration of the appeal time if there has been a mistake as to the facts or the revision would be substantial and required by fairness for a party who did not have access to the information and therefore could not have reasonably filed a timely appeal. The decision to revise a monetary determination after the appeal time has expired is discretionary with the Department.

 

R994-401-202. Wages Used to Determine Monetary Eligibility.

(1) "Wages paid" include those wages actually received by the worker and wages constructively paid, provided the employer's liability for payment has become unconditionally established. Wages are considered constructively paid, for the purposes of this section, on the earliest of: the next regular pay day in accordance with the employer's customary payment practices, the day required by contractual agreement, or as required by state law.

(2) Quarterly wages are all wages paid or constructively paid during a quarter regardless of when those wages are earned. Bonus or lump sum payments which do not meet the definition of vacation and severance pay in R994-405-701 et seq, made within the quarter which were not due on any specific day shall be treated as wages paid during the quarter in which the payment is made unless a request is made by the claimant for apportionment to the calendar quarters in which the remuneration was earned. Any such request must be received by the Department within ten days of the issuance of the monetary determination as provided by Subsection 35A-4-401(7).

 

R994-401-203. Retirement or Disability Retirement Income.

(1) A claimant's WBA is reduced by 100 percent of any retirement benefits, social security, pension, or disability retirement pay (referred to collectively in this section as "retirement benefits" or "retirement pay") received by the claimant. Except, for social security retirement benefits, the reduction is 50 percent for claims with an effective date on or after July 4, 2004, and on or before July 2, 2006. The payments must be:

(a) from a plan contributed to by a base-period employer. Payments made by the employer for whom the claimant did not work during the benefit year are not counted. Social security payments are counted if a base period employer contributed to social security even if the social security payment is not based on employment during the base period.

(b) based on prior employment and the claimant qualifies because of age, length of service, disability, or any combination of these criteria. Disability payments must be based, at least in part, by length of service. Savings plans such as a 401(k) or IRA should not be used to reduce the WBA Payments from workers' compensation for temporary disability, black lung disability income, and benefits from the Department of Veterans Affairs are not counted because the amount of the payment is based on disability and not on length of service. Payments received as a spouse or beneficiary are not counted. That portion of retirement benefits payable to a claimant's former spouse is not counted if the paying entity pays the former spouse directly and it is pursuant to court order or a signed, stipulated agreement in accordance with the law;

(c) periodic and not made in a lump sum. Lump sum payments, even if drawn from the employer's contributions to a fund established for the purpose of retirement, are not treated as severance pay under Subsection 35A-4-405(7); and

(d) payable during the benefit year. A claimant's WBA is not reduced if the claimant is eligible for, but not receiving, retirement income. However, if the claimant subsequently receives a retroactive payment of retirement benefits which, if received during the time unemployment insurance claims were filed, would have resulted in a reduced payment, an overpayment will be established. The period of time the payment represents, not the time of the receipt, is the determining factor. An assumption that a claimant is entitled to receive a pension, even if correct, is not sufficient basis to recompute the WBA. However, if a claimant has applied for a pension and expects to be determined eligible for a specific amount attributable to weeks when Unemployment Insurance benefits are payable, and the claimant is only awaiting receipt of those payments, a reduction of the claimant's WBA will be made.

(2) A claimant who could be eligible for a retirement income, but chooses not to apply until after the Unemployment Insurance benefits have been paid, will be at fault for any overpayment resulting from a retroactive payment of retirement benefits.

(3) The formula for recomputation of the MBA in the event a claimant begins receiving retirement income after the beginning of the benefit year is found in Subsection 35A-4-401(2)(d).

 

R994-401-301. Partial Payments - General Definition.

(1) A claimant's earnings that are equal to or less than 30 percent of the WBA will not result in a reduction of the WBA. The claimant's gross weekly earnings over 30 percent of the WBA will be deducted dollar for dollar from the WBA in the week in which it was earned. A claimant who earns less than the WBA and files a claim may be credited with a waiting week, or paid a partial payment. A claimant who earns equal to or more than the WBA will not be credited with a waiting week nor be eligible for any partial payment for that week.

(2) All work and earnings must be reported on a weekly basis. For example, when an otherwise eligible claimant is required to report income from a farm, and is paid one day of holiday pay and then accepts a one-day temporary job, the work and earnings from all three sources must be reported.

(3) Earnings are reportable in the week the work is performed which may be different from the week payment is received. If a claimant receives payment for commission sales, or other periodic earnings, the income must be attributed to, and reported in, the week when the work was performed.

(4) Reportable earnings which a claimant must report on the weekly claim include any and all wages, remuneration, or compensation for services even if the employer is not required to pay contributions on these wages.

 

R994-401-302. Liability of Part-time Concurrent Reimbursable Employers.

(1) If the claimant worked concurrently for two or more employers during the base period and is separated from one or more of these employers, but continues in the regular part-time work with a reimbursable employer, that nonseparating employer will not be liable for benefit costs provided;

(a) the claimant earned wages from a nonseparating employer within seven days prior to the date when the claim was filed,

(b) the claimant is not working on an "on call" basis,

(c) the number of hours of work have not been reduced, and

(d) the employer makes a request that it not be held liable for benefit costs within ten days of the first notification of the employer's potential liability.

(2) The claimant's WBA will be determined on the basis of the total base period employment and earnings, however, earnings from the part-time reimbursable employer will be excluded from the calculation of the MBA.

(3) If the claimant is later separated from this employer within the benefit year or the claimant's hours of work are reduced below the customary number of hours worked during the base period, the reimbursable employer will be liable to pay the proportionate amount of benefit payments paid thereafter. A new monetary determination can also be made at the request of the claimant and would include all base period wages. The effective date of the revised monetary determination will be the first day of the week in which the request is made.

 

R994-401-303. Income The Claimant must Report While Receiving Unemployment Benefits.

(1) All payments whether an hourly wage, salary, or commission paid for the performance of any service shall be reportable unless specifically identified as an exception in R994-401-304 or R994-401-305.

(2) Gratuities or tips paid directly to an employee by a customer or the employer for a service provided are reportable.

 

R994-401-304. Income Which May Be Reportable Under Certain Circumstances.

(1) A bonus paid as a direct result of past performance of service for a specific period prior to the separation is not reportable with respect to any week after the separation. A bonus is a payment given to an employee in addition to usual wages. If the payment is made contingent upon termination it will be considered a severance payment. Payments given at the time of separation that are based on years of service will also be considered severance payments. Severance payments are reportable in accordance with Subsection 35A-4-405(7).

(2) If a claimant is hired to start working on a certain day and the work is not available as of that date but the employer puts the claimant on the payroll as of that date, the claimant is considered employed and those wages are reportable.

(3) Any payment made in consideration of training that is required by the employer is considered to be reportable income unless shown to be:

(a) expenses necessary for school, for example, tuition, fees, and books;

(b) travel expenses;

(c) actual costs for room and board where costs are created as a necessary expense for the schooling; and

(d) the payments are exempt from income tax liability.

(3) If a claimant is being paid under a contract for the express purpose of being available to an employer, and there are limits placed upon the individual either as to how much earnings, if any, may be earned while receiving these payments, or on the time the individual must hold himself available to the employer, the payment is considered reportable income.

(4) Any payments in kind are reportable, including the cash value for meals, lodging, or other payment unless the meals and lodging are excluded from the definition of wages by the Internal Revenue Service as under the following conditions:

(a) Meals that are furnished:

(i) on the business premises of the employer;

(ii) for the convenience of the employer;

(iii) without charge for substantial non-compensatory business reasons, not for the purpose of additional compensation. Substantial noncompensatory business reasons will be limited to meals which are provided:

(A) to have employees available for emergency call;

(B) to have employees with restricted lunch periods;

(C) because adequate eating facilities are not otherwise available.

(b) Lodging that is furnished:

(i) on the business premises of the employer;

(ii) as a condition of employment;

(iii) for the convenience of the employer, for example, to have an employee available for call at any time.

(5) Pensions that do not meet the criteria in R994-401-203 are not reportable income.

 

R994-401-305. Income a Claimant is not Required to Report While Receiving Unemployment Benefits.

Payments which are received for reasons other than the performance of a service are not reportable income. Some examples are:

(1) Payments from corporate stocks and bonds;

(2) Public service in lieu of payment of fines;

(3) Fees paid for jury duty or as witness fees will be considered reimbursement for expenses;

(4) Amounts paid specifically, either as an advance or reimbursement, for bona fide, ordinary, and necessary expenses incurred or reasonably expected to be incurred in the business of the employer. If an accounting by the employee is not required by the employer for actual expenses, the Department shall not require itemization;

(5) Payments specifically identifiable as not being provided for the rendering of service will not be considered wages including grants, public or private assistance or other support payments;

(6) Money or other considerations which are normally provided as a matter of course to immediate family members;

(7) Income from investments;

(8) Disability or permanent impairment awards under the Workers' Compensation Act; and,

(9) Payment attributable to the value of any equipment owned by the claimant and necessary for the performance of the job. If there is no contract of hire or the contract does not delineate what portion is payable for the equipment, the Department will determine the claimant's wages based on the prevailing wage for similar work under comparable conditions.

 

KEY: unemployment compensation, benefits

[July 19, ]2004

Notice of Continuation May 23, 2002

35A-4-401(1)

35A-4-401(2)

35A-4-401(3)

35A-4-401(6)