YES:
MR. SPEAKER:
Your Committee on Labor and Employment , to which was referred Senate Bill
23 , has had the same under consideration and begs leave to report the same back to the
House with the recommendation that said bill be amended as follows:
Delete the title and insert the following:
A BILL FOR AN ACT to amend the Indiana Code concerning labor
and safety and to make an appropriation.
mail to any organization that delivers to the officers, before
January 1 of that year, an annual written request for notices of any
meeting to consider the adoption of an ordinance or a resolution
making a preliminary determination to issue bonds or enter into
a lease and shall conduct a public hearing on the preliminary
determination before adoption of the ordinance or resolution. The
political subdivision must make the following information
available to the public at the public hearing on the preliminary
determination, in addition to any other information required by
law:
(A) The result of the political subdivision's current and
projected annual debt service payments divided by the net
assessed value of taxable property within the political
subdivision.
(B) The result of:
(i) the sum of the political subdivision's outstanding long
term debt plus the outstanding long term debt of other taxing
units that include any of the territory of the political
subdivision; divided by
(ii) the net assessed value of taxable property within the
political subdivision.
(C) The information specified in subdivision (3)(A) through
(3)(G).
(2) If the proper officers of a political subdivision make a
preliminary determination to issue bonds or enter into a lease, the
officers shall give notice of the preliminary determination by:
(A) publication in accordance with IC 5-3-1; and
(B) first class mail to the organizations described in
subdivision (1).
(3) A notice under subdivision (2) of the preliminary
determination of the political subdivision to issue bonds or enter
into a lease must include the following information:
(A) The maximum term of the bonds or lease.
(B) The maximum principal amount of the bonds or the
maximum lease rental for the lease.
(C) The estimated interest rates that will be paid and the total
interest costs associated with the bonds or lease.
(D) The purpose of the bonds or lease.
to the county voter registration office a statement verifying:
(A) whether a person who signed the petition as a registered
voter but is not a registered voter, as determined by the county
voter registration office, is the owner of real property in the
political subdivision; and
(B) whether a person who signed the petition as an owner of
real property within the political subdivision does in fact own
real property within the political subdivision.
(9) The county voter registration office, not more than ten (10)
business days after determining that at least one hundred
twenty-five (125) persons who signed the petition are registered
voters or after receiving the statement from the county auditor
under subdivision (8) (as applicable), shall make the final
determination of whether a sufficient number of persons have
signed the petition. Whenever the name of an individual who
signs a petition form as a registered voter contains a minor
variation from the name of the registered voter as set forth in the
records of the county voter registration office, the signature is
presumed to be valid, and there is a presumption that the
individual is entitled to sign the petition under this section. Except
as otherwise provided in this chapter, in determining whether an
individual is a registered voter, the county voter registration office
shall apply the requirements and procedures used under IC 3 to
determine whether a person is a registered voter for purposes of
voting in an election governed by IC 3. However, an individual is
not required to comply with the provisions concerning providing
proof of identification to be considered a registered voter for
purposes of this chapter. A person is entitled to sign a petition
only one (1) time in a particular referendum process under this
chapter, regardless of whether the person owns more than one (1)
parcel of real property within the political subdivision and
regardless of whether the person is both a registered voter in the
political subdivision and the owner of real property within the
political subdivision. Notwithstanding any other provision of this
section, if a petition is presented to the county voter registration
office within forty-five (45) days before an election, the county
voter registration office may defer acting on the petition, and the
time requirements under this section for action by the county
voter registration office do not begin to run until five (5) days
after the date of the election.
(10) The county voter registration office must file a certificate and
each petition with:
(A) the township trustee, if the political subdivision is a
township, who shall present the petition or petitions to the
township board; or
(B) the body that has the authority to authorize the issuance of
the bonds or the execution of a lease, if the political
subdivision is not a township;
within thirty-five (35) business days of the filing of the petition
requesting the referendum process. The certificate must state the
number of petitioners who are owners of real property within the
political subdivision and the number of petitioners who are
registered voters residing within the political subdivision.
(11) If a sufficient petition requesting the local public question
process is not filed by owners of real property or registered voters
as set forth in this section, the political subdivision may issue
bonds or enter into a lease by following the provisions of law
relating to the bonds to be issued or lease to be entered into.
(c) If the proper officers of a political subdivision make a
preliminary determination to issue bonds or enter into a lease, the
officers shall provide to the county auditor:
(1) a copy of the notice required by subsection (b)(2); and
(2) any other information the county auditor requires to fulfill the
county auditor's duties under section 3.6 of this chapter.
(d) This subsection applies to a controlled project described in
subsection (a)(1)(C) whenever the statewide average
unemployment rate in the previous calendar year for the
construction industry is ten percent (10%) or higher. The amounts
listed in subsection (a)(1)(C)(ii) are increased as follows:
(1) Twelve million dollars ($12,000,000) is increased to
eighteen million dollars ($18,000,000).
(2) An amount equal to one percent (1%) of the total gross
assessed value of property within the political subdivision on
the last assessment date (if that amount is at least one million
dollars ($1,000,000)) is increased to an amount equal to one
and one-half percent (1.5%) of the total gross assessed value
of property within the political subdivision on the last
assessment date (if that amount is at least one million dollars
($1,000,000)).
twenty-five dollars ($5) ($25) with the statement required in
subsection (d). The fees collected under this subsection shall be
deposited into a special account in the state general fund known as the
independent contractor information account. Money in the independent
contractor information account is annually appropriated to the
department for its use in carrying out the purposes of this section.
(g) The department shall keep each statement and supporting
documentation received under this section on file and on request may
verify that a certificate of exemption is on file.
(h) The certificate of exemption required by this section must be on
a form prescribed and provided by the department. A certificate issued
under this section is valid for one (1) year. The department shall
maintain the original certificate on file.
(i) A certificate of exemption must certify the following
information:
(1) That the independent contractor has worker's compensation
coverage for the independent contractor's employees in
accordance with IC 22-3-2 through IC 22-3-7.
(2) That the independent contractor desires to be exempt from
being able to recover under the worker's compensation policy or
self-insurance of a person for whom the independent contractor
will perform work only as an independent contractor.
(j) The department shall provide the certificate of exemption to the
person requesting it not less than seven (7) business days after
verifying the accuracy of the supporting documentation. To be given
effect, a certificate of exemption must be filed with the worker's
compensation board of Indiana in accordance with IC 22-3-2-14.5(f)
and IC 22-3-7-34.5(g).
(k) Not more than thirty (30) days after the department receives an
independent contractor's statement and supporting documentation and
issues a certificate of exemption, the department shall provide the
independent contractor with an explanation of the department's tax
treatment of independent contractors and the duty of the independent
contractor to remit any taxes owed.
(l) The information received from an independent contractor's
statement and supporting documentation is to be treated as confidential
by the department and is to be used solely for the purposes of this
section.
employment for the purpose of collecting facts and statistics relating to
the employment of workers and of making inspections for the proper
enforcement of all of the labor laws of this state, including IC 5-16-7
and IC 22-2-15. No employer or owner shall refuse to admit the
commissioner of labor or his authorized representatives of the
commissioner of labor to his the employer's or owner's place of
employment.
any material or article of merchandise to, or fabrication into, a
structure, project, development, real property, or improvement
described in this section.
(c) The term defined in subsection (a) includes moving
construction related materials to or from the job site.
Sec. 6. (a) As used in this chapter, "contractor" means any sole
proprietor, partnership, firm, corporation, limited liability
company, association, or other legal entity that engages in
construction authorized by law to do business within Indiana.
(b) The term includes a general contractor, a subcontractor, and
a lower tiered contractor.
(c) The term does not include the state, the federal government,
or a political subdivision.
Sec. 7. (a) As used in this chapter, "department" refers to the
department of labor created by IC 22-1-1-1.
(b) The term includes the commissioner, employees of the
department of labor, and agents authorized by the commissioner
to act on behalf of the department of labor.
Sec. 8. (a) As used in this chapter, "department of revenue"
refers to the department of state revenue established by
IC 6-8.1-2-1.
(b) The term includes the commissioner, employees of the
department of revenue, and agents authorized by the commissioner
to act on behalf of the department of revenue.
Sec. 9. (a) As used in this chapter, "department of workforce
development" refers to the department of workforce development
established by IC 22-4.1-2-1.
(b) The term includes the commissioner, employees of the
department of workforce development, and agents authorized by
the commissioner to act on behalf of the department of workforce
development.
Sec. 10. (a) As used in this chapter, "interested party" means a
person with an interest in compliance with this chapter, including
the state or a political subdivision.
(b) This section does not require that a person be aggrieved in
order to be considered an interested party.
Sec. 11. As used in this chapter, "performing services" means
performing construction services.
Sec. 12. As used in this chapter, "political subdivision" has the
meaning set forth in IC 36-1-2-13.
Sec. 13. As used in this chapter, "subcontractor" has the
meaning set forth in IC 36-1-12-1.2(3).
Sec. 14. An individual performing services for a contractor is
considered to be an employee of the contractor unless:
(1) the individual:
(A) has been and will continue to be free from control or
direction over the performance of the service for the
contractor, both under the individual's contract of service
and in fact; and
(B) is engaged in an independently established trade,
occupation, profession, or business;
(2) the individual is determined to be a legitimate sole
proprietor or partnership because:
(A) the sole proprietor or partnership is performing the
service without substantial direction and control as to the
means and manner of providing the services, subject only
to the right of the contractor, for whom the service is
provided, to specify the desired result;
(B) the sole proprietor or partnership has a substantial
investment of capital in the sole proprietorship;
(C) the sole proprietor or partnership owns the capital
goods, gains the profits, and bears the losses of the sole
proprietorship or partnership;
(D) the sole proprietor or partnership makes its services
available to the general public or the business community
on a continuing basis;
(E) the sole proprietor or partnership includes services
rendered on a federal income tax schedule as an
independent business or profession;
(F) the sole proprietor or partnership performs services
for the contractor under the sole proprietor's or
partnership's name and the contractor pays the sole
proprietor or partnership a flat fee or other agreed
amount of compensation that is not based on an established
rate for any time period of work;
(G) the sole proprietor or partnership obtains and pays for
the license or permit in the sole proprietor's or
partnership's name when the services being provided
require a license or permit;
(H) the sole proprietor or partnership furnishes the tools
and equipment necessary to provide the service;
(I) if necessary, the sole proprietor or partnership hires its
own employees, pays the employees without
reimbursement from the contractor, and reports the
employees' income to the Internal Revenue Service;
(J) the contractor does not:
(i) represent the sole proprietor or partnership as an
employee of the contractor to its customers; or
(ii) reimburse the sole proprietor or partnership for its
business expenses;
(K) the sole proprietor or partnership has the right to
choose to perform similar services for others; and
(L) the sole proprietorship or partnership has a written
agreement with the contractor describing the intended
business relationship; or
(3) the individual is an owner-operator that provides a motor
vehicle and the services of a driver under a written contract
that is subject to IC 8-2.1-24-23, 45 IAC 16-1-13, or 49 CFR
376, to a motor carrier.
Sec. 15. It is a violation of this chapter for a contractor, an agent
of a contractor, or a subcontractor to classify an individual as an
independent contractor unless the relationship between the
individual and the contractor or subcontractor is excluded under
section 14 of this chapter.
Sec. 16. (a) A contractor or subcontractor shall maintain
records for a period as required in IC 6-3-6-10 and IC 6-8.1-5-4 for
an individual performing services for the contractor or
subcontractor, regardless whether the individual is classified as:
(1) an employee;
(2) an independent contractor;
(3) a sole proprietor; or
(4) a partnership.
(b) Records to be maintained by the contractor or subcontractor
must include all documents related to, or tending to establish the
nature of, the relationship between the contractor or subcontractor
and an individual performing services for the contractor or
subcontractor. Records that must be maintained under this section
for an individual performing services for the contractor or
subcontractor include, but are not limited to:
(1) the:
(A) name;
(B) address;
(C) phone number; and
(D) Social Security number, individual taxpayer
identification number, or federal tax identification
number;
(2) the type of work performed and the total number of days
and hours worked;
(3) the method, frequency, and basis on which wages were
paid or payments were made;
(4) all invoices, billing statements, or other payment records,
including the dates of payments, and any miscellaneous
income paid or deductions made;
(5) copies of all contracts with the individual, agreements with
the individual, applications for employment by the individual
with the contractor or subcontractor, and policy or
employment manuals of the employer for the period that the
individual performed services for the contractor or
subcontractor; and
(6) any federal and state tax documents or other information
the department considers relevant or necessary.
Sec. 17. (a) An interested party may file a complaint with the
department against a contractor or a subcontractor if the
interested party has a reasonable belief that the contractor or
subcontractor is in violation of this chapter. The department may
not investigate a complaint for a violation alleged to have occurred
before January 1, 2011.
(b) Upon receiving a complaint under subsection (a), the
department immediately shall commence an investigation to
ascertain the facts relating to the violation alleged in the complaint
and determine whether a violation under this chapter has
occurred. The investigation may be made by written or oral
inquiry, field visit, conference, or any method or combination of
methods the department considers suitable. The department:
(1) shall conduct investigations, including random inspections,
in connection with the administration and enforcement of this
chapter;
(2) shall enforce this chapter; and
(3) may hire investigators and other personnel necessary to
carry out the purpose of this chapter.
(c) The department has authority to visit and inspect, at all
reasonable times, a worksite subject to the provisions of this
chapter and has authority to inspect, at all reasonable times,
documents related to the determination of whether an individual
is an independent contractor under section 14 of this chapter.
(d) The department may:
(1) compel, by subpoena, the attendance and testimony of
witnesses and the production of books, payrolls, records,
papers, and other evidence in an investigation; and
(2) administer oaths to witnesses.
Sec. 18. (a) The department, the department of workforce
development, the department of revenue, and the board shall
cooperate under this chapter by sharing information concerning
suspected failure to properly classify an independent contractor as
an employee by a contractor, an agent of a contractor, or a
subcontractor.
(b) Before January 1, 2011, the department, the department of
workforce development, the department of revenue, and the board
shall develop a joint computer system in order to share
information. For purposes of IC 5-14-3-4, information exchanged
under this section is confidential.
Sec. 19. (a) Whenever the department determines, after
investigation, that a violation of this chapter has occurred, the
department shall issue and cause to be served on the contractor or
the subcontractor, by posting at the site in a location visible to the
workers, if construction is still occurring, an order to cease and
desist from further violation of this chapter. The department also
shall order the contractor or subcontractor to make all workers
whole who were misclassified as independent contractors,
including appropriate contributions to unemployment insurance,
Federal Insurance Contributions Act, and Medicare on behalf of
the workers. If construction has ceased, the notice shall be sent by
first class mail to the business address of the contractor as shown
in the records of the secretary of state. If a subcontractor has
committed the violation, the department shall notify the contractor
either at the job site or by first class mail sent to the business
address of the contractor as shown in the records of the secretary
of state, and to the subcontractor, either at the job site or by first
class mail sent to the business address of the subcontractor as
shown in the records of the secretary of state. An order issued
under this section is a matter of public record.
(b) Upon determining that a contractor, an agent of a
contractor, or a subcontractor has classified an employee as an
independent contractor in violation of this chapter, the department
shall notify:
(1) the department of workforce development, which shall
investigate the contractor's compliance with laws under
IC 22-4 and IC 22-4.1;
(2) the department of revenue, which shall investigate the
contractor's compliance with laws under IC 6; and
(3) the board, which shall investigate the contractor's
compliance with laws under IC 22-3.
The department of workforce development, the department of
revenue, and the board have the option to join in the investigation
with the department or to commence a separate investigation.
Sec. 20. Seven (7) business days after the department serves a
cease and desist order upon a violator under section 19 of this
chapter, if services are continuing to be performed, the
investigating department shall return to the job site and continue
investigation of the classification of employees. If the department
concludes that the improper classification of employees is
continuing, the department shall impose a civil penalty of one
thousand dollars ($1,000) per improperly classified employee
against the contractor. The civil penalty shall be deposited in the
employee classification fund established by section 23 of this
chapter. A civil penalty imposed under this section is a matter of
public record.
Sec. 21. (a) A contractor, agent of a contractor, or subcontractor
that receives:
(1) a cease and desist order;
(2) a civil penalty assessment; or
(3) a determination that money is due an employee due to
misclassification;
from the department may seek a hearing on the determination by
filing a written petition for review with the department within ten
(10) business days after receipt of the determination and in
accordance with IC 4-21.5-3-2. The petition for review must
contain a statement of the basis for contesting the determination of
the department. The department shall mail a copy of the petition
for review to the complainant and to any interested party
designated on the complaint. The contractor or subcontractor shall
post a copy of the petition for review contemporaneously with the
filing of the petition at or near the place where the alleged violation
occurred or, if the contractor or subcontractor is no longer
performing services at the place where the alleged violation
occurred, at the contractor's or subcontractor's principal place of
business in a conspicuous place where labor notices regularly are
posted. Further, the contractor or subcontractor, when filing the
petition, shall post a bond in an amount sufficient to pay wages,
salary, employment benefits, or other compensation lost or denied
to the individual as determined by the department and civil
penalties assessed by the department. If the contractor, agent of the
contractor, or subcontractor does not file a petition for review and
post a bond within the ten (10) business day period, the
department's determination is final.
(b) If the contractor, agent of the contractor, or subcontractor
files a petition for review of an action under this section within ten
(10) business days after notification of the proposed action by the
department, the commissioner shall set a hearing on the proposed
action. The hearing must take place not more than forty-five (45)
calendar days after the receipt of the request for the hearing by the
department. The hearing must be held in accordance with
IC 4-21.5.
Sec. 22. If a contractor or subcontractor does not:
(1) file a written petition for review within ten (10) business
days after receipt of the determination in accordance with
IC 4-21.5-3-2 as required by section 21(a) of this chapter; or
(2) prevail in an appeal under IC 4-21.5-3-2;
the department may additionally order the contractor or
subcontractor to cease work on all projects where the contractor
or subcontractor has been found to have misclassified employees
under this chapter. This order must remain in effect until the
department determines that the contractor or subcontractor has
remedied fully the misclassification, including making all
employees whole for the misclassification.
Sec. 23. (a) The employee classification fund is established to
provide funds for:
(1) administering this chapter;
(2) investigating contractors, agents of contractors, and
subcontractors;
(3) determining whether there is proof to substantiate
allegations of failure to properly classify employees; and
(4) meeting other expenses incurred in carrying out the duties
of the department under this chapter.
The fund consists of civil penalties collected by the department
under this chapter. The fund shall be administered by the
department.
(b) The expenses of administering the fund shall be paid from
money in the fund.
(c) The treasurer of state shall invest the money in the fund not
currently needed to meet the obligations of the fund in the same
manner as other public money may be invested. The interest that
accrues from these investments shall be deposited in the fund.
(d) Money in the fund at the end of a state fiscal year does not
revert to the state general fund.
(e) Money in the fund is continuously appropriated for the
purposes of this chapter.
Sec. 24. IC 22-1-1-18 applies to a violation of this chapter. When
it appears to the department that a contractor, an agent of a
contractor, or a subcontractor has violated a valid order of the
department issued under this chapter, the department may:
(1) commence an action through the attorney general; and
(2) seek an order from the superior or circuit court in the
county in which the contractor or subcontractor does
business;
mandating the contractor or the subcontractor to obey the order
of the department. The failure of the contractor or the
subcontractor to obey a court order obtained under this section is
contempt of court.
Sec. 25. (a) The department shall post a summary of the
requirements of this chapter on the Internet web site of the
department.
(b) After the second subsequent violation determined by the
department that occurs within five (5) years of an earlier violation,
the department shall place the contractor's or subcontractor's
name on a list maintained on the Internet web site of the
department. A contract for a public work may not be awarded by
a department of the state or a political subdivision to:
(1) a contractor or subcontractor whose name appears on the
list; or
(2) a firm, a corporation, a partnership, or an association in
which the contractor or subcontractor has an interest;
until four (4) years after the posting of the contractor's or
subcontractor's name on the list. If a contractor, agent of the
contractor, or subcontractor files a timely petition for review
under section 21(b) of this chapter, the contractor's or
subcontractor's name shall not be added to the list until the
department's determination that the contractor or subcontractor
has violated this chapter is final.
Sec. 26. (a) It is a violation of this chapter for a contractor, an
agent of a contractor, or a subcontractor to retaliate through
discharge or in any other manner against a person for exercising
a right granted under this chapter.
(b) It is a violation of this chapter for a contractor, an agent of
a contractor, or a subcontractor to retaliate against a person for:
(1) making a complaint to a contractor or an agent of a
contractor, to a coworker, to a community organization, to a
state or federal agency, or within a public hearing that rights
guaranteed under this chapter have been violated;
(2) causing a proceeding under or related to this chapter to be
instituted; or
(3) testifying or preparing to testify in an investigation or
proceeding under this chapter.
(c) Retaliation through discharge or in any other manner
subjects a contractor, an agent of a contractor, or a subcontractor
to a private civil action brought by the aggrieved person.
(d) In a civil action for unlawful retaliation, the court may
award:
(1) all legal or equitable relief, or both, as appropriate; and
(2) attorney's fees and costs.
(e) The right of an aggrieved person to bring a civil action under
this section terminates three (3) years after the final date of
performing services for the contractor or subcontractor by the
affected employee. However, the period of limitation established by
this subsection is tolled if the contractor, an agent of the
contractor, or a subcontractor has deterred a person's exercise of
rights under this chapter.
Sec. 27. A person may not waive any provision of this chapter.
Sec. 28. All statutory provisions and penalties existing before
July 1, 2010, including fines, that apply to the improper
classification of employees as independent contractors remain in
effect after June 30, 2010.
Sec. 29. A finding made under this chapter:
(1) is for the purpose of enforcing this chapter; and
(2) is not admissible or binding against a party in a
proceeding other than a proceeding under this chapter.
not include payments specified in section 2(b) of this chapter.
(d) For calendar quarters beginning on and after January 1, 1991,
and before July 1, 1995, "wage credits" means remuneration paid for
employment by an employer to an individual. Wage credits may not
exceed four thousand eight hundred ten dollars ($4,810) and may not
include payments specified in section 2(b) of this chapter.
(e) For calendar quarters beginning on and after July 1, 1995, and
before July 1, 1997, "wage credits" means remuneration paid for
employment by an employer to an individual and remuneration
received as tips or gratuities in accordance with Sections 3102 and
3301 et seq. of the Internal Revenue Code. Wage credits may not
exceed five thousand dollars ($5,000) and may not include payments
specified in section 2(b) of this chapter.
(f) For calendar quarters beginning on and after July 1, 1997, and
before July 1, 1998, "wage credits" means remuneration paid for
employment by an employer to an individual and remuneration
received as tips or gratuities in accordance with Sections 3102 and
3301 et seq. of the Internal Revenue Code. Wage credits may not
exceed five thousand four hundred dollars ($5,400) and may not
include payments specified in section 2(b) of this chapter.
(g) For calendar quarters beginning on and after July 1, 1998, and
before July 1, 1999, "wage credits" means remuneration paid for
employment by an employer to an individual and remuneration
received as tips or gratuities in accordance with Sections 3102 and
3301 et seq. of the Internal Revenue Code. Wage credits may not
exceed five thousand six hundred dollars ($5,600) and may not include
payments that are excluded from the definition of wages under section
2(b) of this chapter.
(h) For calendar quarters beginning on and after July 1, 1999, and
before July 1, 2000, "wage credits" means remuneration paid for
employment by an employer to an individual and remuneration
received as tips or gratuities in accordance with Sections 3102 and
3301 et seq. of the Internal Revenue Code. Wage credits may not
exceed five thousand eight hundred dollars ($5,800) and may not
include payments that are excluded from the definition of wages under
section 2(b) of this chapter.
(i) For calendar quarters beginning on and after July 1, 2000, and
before July 1, 2001, "wage credits" means remuneration paid for
employment by an employer to an individual and remuneration
received as tips or gratuities in accordance with Sections 3102 and
3301 et seq. of the Internal Revenue Code. Wage credits may not
exceed six thousand seven hundred dollars ($6,700) and may not
include payments that are excluded from the definition of wages under
section 2(b) of this chapter.
(j) For calendar quarters beginning on and after July 1, 2001, and
before July 1, 2002, "wage credits" means remuneration paid for
employment by an employer to an individual and remuneration
received as tips or gratuities in accordance with Sections 3102 and
3301 et seq. of the Internal Revenue Code. Wage credits may not
exceed seven thousand three hundred dollars ($7,300) and may not
include payments that are excluded from the definition of wages under
section 2(b) of this chapter.
(k) For calendar quarters beginning on and after July 1, 2002, and
before July 1, 2003, "wage credits" means remuneration paid for
employment by an employer to an individual and remuneration
received as tips or gratuities in accordance with Sections 3102 and
3301 et seq. of the Internal Revenue Code. Wage credits may not
exceed seven thousand nine hundred dollars ($7,900) and may not
include payments that are excluded from the definition of wages under
section 2(b) of this chapter.
(l) For calendar quarters beginning on and after July 1, 2003, and
before July 1, 2004, "wage credits" means remuneration paid for
employment by an employer to an individual and remuneration
received as tips or gratuities in accordance with Sections 3102 and
3301 et seq. of the Internal Revenue Code. Wage credits may not
exceed eight thousand two hundred sixteen dollars ($8,216) and may
not include payments that are excluded from the definition of wages
under section 2(b) of this chapter.
(m) For calendar quarters beginning on and after July 1, 2004, and
before July 1, 2005, "wage credits" means remuneration paid for
employment by an employer to an individual and remuneration
received as tips or gratuities in accordance with Sections 3102 and
3301 et seq. of the Internal Revenue Code. Wage credits may not
exceed eight thousand seven hundred thirty-three dollars ($8,733) and
may not include payments that are excluded from the definition of
wages under section 2(b) of this chapter.
pursuant to the terms of the Fair Labor Standards Act (Federal
Wage and Hour Law, 29 U.S.C. 201 et seq.);
(12) for a week in which a payment is actually received by an
individual, payments made by an employer to an individual who
accepts an offer from the employer in connection with a layoff or
a plant closure; or
(13) except as provided in subsection (c)(2), the part of a payment
made by an employer to an individual who accepts an offer from
the employer in connection with a layoff or a plant closure if that
part is attributable to a week and the week:
(A) occurs after an individual receives the payment; and
(B) was used under the terms of a written agreement to
compute the payment.
(14) training allowances or stipends that are:
(A) cash-in-hand payments under federal or state law to an
individual for an individual's discretionary use; and
(B) not direct or indirect compensation for training costs,
such as tuition, books, and supplies.
(b) Deductible income shall not include the first three dollars ($3),
or twenty percent (20%) of the claimant's weekly benefit amount
rounded to the next lowest dollar, whichever is the larger, of
remuneration paid or payable to an individual with respect to any week
by other than the individual's base period employer or employers.
(c) For the purpose of deductible income only, remuneration for
services from employing units does not include:
(1) bonuses, gifts, or prizes awarded to an employee by an
employing unit; or
(2) compensation made under a valid negotiated contract or
agreement in connection with a layoff or plant closure, without
regard to how the compensation is characterized by the contract
or agreement.
(d) Deductible income does not include a supplemental
unemployment insurance benefit made under a valid negotiated
contract or agreement.
(e) Deductible income does not include any payments made to
an individual by a court system under a summons for jury
service.".
provisions of this section.
(c) The weekly extended benefit amount payable to an individual for
a week of total unemployment in the individual's eligibility period shall
be an amount equal to the weekly benefit amount payable to the
individual during the individual's applicable benefit period, prior to any
reduction of such weekly benefit amount.
(d) With respect to initial claims filed for any week beginning on
and after July 7, 1991, and before July 1, 1995, each eligible individual
who is totally unemployed (as defined in IC 22-4-3-1) in any week in
the individual's benefit period shall be paid for the week, if properly
claimed, benefits at the rate of:
(1) five percent (5%) of the first one thousand dollars ($1,000) of
the individual's wage credits in the calendar quarter during the
individual's base period in which the wage credits were highest;
and
(2) four percent (4%) of the individual's remaining wage credits
in the calendar quarter during the individual's base period in
which the wage credits were highest.
However, the weekly benefit amount may not exceed the amount
specified in subsections (e) through (i).
(e) With respect to initial claims filed for any week beginning on
and after July 7, 1991, and before July 5, 1992, the weekly benefit
amount may not exceed:
(1) one hundred sixteen dollars ($116) if the eligible and qualified
individual has no dependents;
(2) one hundred thirty-four dollars ($134) if the eligible and
qualified individual has one (1) dependent;
(3) one hundred fifty-three dollars ($153) if the eligible and
qualified individual has two (2) dependents; or
(4) one hundred seventy-one dollars ($171) if the eligible and
qualified individual has three (3) or more dependents.
(f) With respect to initial claims filed for any week beginning on
and after July 5, 1992, and before July 4, 1993, the weekly benefit
amount may not exceed:
(1) one hundred forty dollars ($140) if the eligible and qualified
individual has no dependents;
(2) one hundred sixty dollars ($160) if the eligible and qualified
individual has one (1) dependent; or
and
(2) four percent (4%) of the individual's remaining wage credits
in the calendar quarter during the individual's base period in
which the wage credits were highest.
(l) This subsection applies after December 31, 2010, to benefits
computed and paid under subsection (k). A weekly benefit amount
may not exceed fifty-five percent (55%) of the state average weekly
wage, determined annually by the department not later than
October 1 each year for the twelve (12) month period ending June
30 of that year. The state average weekly wage determined in a
year shall be used in determining the maximum weekly benefit
amount paid during the following calendar year. However, the
maximum weekly benefit amount must be at least three hundred
ninety dollars ($390).
or
(B) failure by the individual to participate in or complete the
reemployment services is excused by the director under
IC 22-4-14-2(b).
The term "effort to secure full-time work" shall be defined by the
department through rule which shall take into consideration whether
such individual has a reasonable assurance of reemployment and, if so,
the length of the prospective period of unemployment, but must include
as a condition the individual's submission of at least one (1) application
for work in each week for which the individual is claiming benefits. An
individual who submits an application for work online through an
Internet web site complies with this condition. Notwithstanding any
other provision of this article, the condition that an individual
submit at least one (1) application for work in each week for which
the individual is claiming benefits is suspended for a calendar year
whenever the statewide unemployment rate for the previous
calendar year is seven and one-half percent (7.5%) or higher.
However, if an otherwise eligible individual is unable to work or
unavailable for work on any normal work day of the week the
individual shall be eligible to receive benefits with respect to such
week reduced by one-third (1/3) of the individual's weekly benefit
amount for each day of such inability to work or unavailability for
work.
(c) For the purpose of this article, unavailability for work of an
individual exists in, but is not limited to, any case in which, with
respect to any week, it is found:
(1) that such individual is engaged by any unit, agency, or
instrumentality of the United States, in charge of public works or
assistance through public employment, or any unit, agency, or
instrumentality of this state, or any political subdivision thereof,
in charge of any public works or assistance through public
employment;
(2) that such individual is in full-time active military service of
the United States, or is enrolled in civilian service as a
conscientious objector to military service;
(3) that such individual is suspended for misconduct in
connection with the individual's work; or
(4) that such individual is in attendance at a regularly established
public or private school during the customary hours of the
individual's occupation or is in any vacation period intervening
between regular school terms during which the individual is a
student. However, this subdivision does not apply to any
individual who is attending a regularly established school, has
been regularly employed and upon becoming unemployed makes
an effort to secure full-time work and is available for suitable
full-time work with the individual's last employer, or is available
for any other full-time employment deemed suitable.
(d) Notwithstanding any other provisions in this section or
IC 22-4-15-2, no otherwise eligible individual shall be denied benefits
for any week because the individual is in training with the approval of
the department, nor shall such individual be denied benefits with
respect to any week in which the individual is in training with the
approval of the department by reason of the application of the
provisions of this section with respect to the availability for work or
active search for work or by reason of the application of the provisions
of IC 22-4-15-2 relating to failure to apply for, or the refusal to accept,
suitable work. The department shall by rule prescribe the conditions
under which approval of such training will be granted.
(e) Notwithstanding subsection (b), (c), or (d), or IC 22-4-15-2,
an otherwise eligible individual shall not be denied benefits for any
week or determined not able, available, and actively seeking work,
because the individual is responding to a summons for jury service.
The individual shall:
(1) obtain from the court proof of the individual's jury
service; and
(2) provide to the department, in the manner the department
prescribes by rule, proof of the individual's jury service.
opportunities in the individual's job classification are
impaired by a substantial reduction in employment at the
worksite.
(2) At the time of the termination or layoff described in
subdivision (1), the individual is eligible for benefits under this
article.
(3) The individual notifies the department of the individual's
intention to enroll in the training described in subdivision (4)
not later than the latest of the following dates:
(A) Sixty (60) days after the date of the individual's
termination or layoff.
(B) Thirty (30) days after the date the individual enrolls in
the training.
(4) The individual enrolls and maintains satisfactory progress
in one of the following:
(A) A state approved training program.
(B) A job training program authorized under the federal
Workforce Investment Act (Act) (29 U.S.C. 2801 et seq.),
including reauthorizations of the Act.
(C) A training program authorized by the Act or approved
by the state that prepares the individual for entry into a
high demand occupation (as determined by the department
using available labor market data), if the individual:
(i) separated from a declining occupation (as determined
by the department using available labor market data); or
(ii) involuntarily and indefinitely separated from
employment as a result of a permanent reduction of
operations at the individual's place of employment.
(5) The individual:
(A) has not completed the training described in subdivision
(4) by the last day the individual is entitled to receive
benefits under:
(i) this article; and
(ii) any federal law providing federally financed
supplemental or extended benefits; and
(B) is reasonably expected to complete successfully the
instruction or training described in subdivision (4) during
or after the period in which the additional benefits
described in subsection (b) are paid.
(b) An individual who meets the requirements of subsection (a)
is entitled to receive a weekly benefit computed under subsection
(c) for each week, up to a maximum of twenty-six (26) weeks, the
department certifies that the individual needs to complete the
instruction or training described in subsection (a)(4).
(c) The weekly benefit described in subsection (b) is equal to:
(1) the weekly benefit amount payable to the individual during
the individual's most recent benefit period; minus
(2) any deductible income (as defined in IC 22-4-5-1)
attributable to the individual.
(d) The amounts paid under this section do not affect and may
not be charged to the experience account of any employer.
(e) Benefits may not be paid under this section later than one (1)
year after the last day of an individual's most recent benefit period.
claim, as initially determined; multiplied by
(B) seventy-five percent (75%);
rounded (if not already a multiple of one dollar ($1)) to the next
higher dollar.
(2) For the second separation from employment under
disqualifying conditions, the maximum benefit amount of the
individual's current claim is equal to the result of:
(A) the maximum benefit amount of the individual's current
claim determined under subdivision (1); multiplied by
(B) eighty-five percent (85%);
rounded (if not already a multiple of one dollar ($1)) to the next
higher dollar.
(3) For the third and any subsequent separation from employment
under disqualifying conditions, the maximum benefit amount of
the individual's current claim is equal to the result of:
(A) the maximum benefit amount of the individual's current
claim determined under subdivision (2); multiplied by
(B) ninety percent (90%);
rounded (if not already a multiple of one dollar ($1)) to the next
higher dollar.
(c) The disqualifications provided in this section shall be subject to
the following modifications:
(1) An individual shall not be subject to disqualification because
of separation from the individual's employment if:
(A) the individual left to accept with another employer
previously secured permanent full-time work which offered
reasonable expectation of continued covered employment and
betterment of wages or working conditions and thereafter was
employed on said job;
(B) having been simultaneously employed by two (2)
employers, the individual leaves one (1) such employer
voluntarily without good cause in connection with the work
but remains in employment with the second employer with a
reasonable expectation of continued employment; or
(C) the individual left to accept recall made by a base period
employer.
(2) An individual whose unemployment is the result of medically
substantiated physical illness or disability and who is
involuntarily unemployed after having made reasonable efforts to
maintain the employment relationship (as defined in
IC 22-4-2-30.5) of the individual or the individual's spouse,
minor child, or parent shall not be subject to disqualification
under this section for such separation.
(3) An individual who left work to enter the armed forces of the
United States shall not be subject to disqualification under this
section for such leaving of work.
(4) An individual whose employment is terminated under the
compulsory retirement provision of a collective bargaining
agreement to which the employer is a party, or under any other
plan, system, or program, public or private, providing for
compulsory retirement and who is otherwise eligible shall not be
deemed to have left the individual's work voluntarily without
good cause in connection with the work. However, if such
individual subsequently becomes reemployed and thereafter
voluntarily leaves work without good cause in connection with the
work, the individual shall be deemed ineligible as outlined in this
section.
(5) An otherwise eligible individual shall not be denied benefits
for any week because the individual is in training approved under
Section 236(a)(1) of the Trade Act of 1974, nor shall the
individual be denied benefits by reason of leaving work to enter
such training, provided the work left is not suitable employment,
or because of the application to any week in training of provisions
in this law (or any applicable federal unemployment
compensation law), relating to availability for work, active search
for work, or refusal to accept work. For purposes of this
subdivision, the term "suitable employment" means with respect
to an individual, work of a substantially equal or higher skill level
than the individual's past adversely affected employment (as
defined for purposes of the Trade Act of 1974), and wages for
such work at not less than eighty percent (80%) of the individual's
average weekly wage as determined for the purposes of the Trade
Act of 1974.
(6) An individual is not subject to disqualification because of
separation from the individual's employment if:
(A) the employment was outside the individual's labor market;
written notice of the determination of insured status shall be furnished
to the individual promptly. The notice must include the time by which
the employer is required to respond to the department's notice of the
individual's claim, and complete information about the rules of
evidence and standards of proof that the department will apply to
determine the validity of the individual's claim, if the employer
disputes the claim. Each such determination shall be based on and
include a written statement showing the amount of wages paid to the
individual for insured work by each employer during the individual's
base period and shall include a finding as to whether such wages meet
the requirements for the individual to be an insured worker, and, if so,
the week ending date of the first week of the individual's benefit period,
the individual's weekly benefit amount, and the maximum amount of
benefits that may be paid to the individual for weeks of unemployment
in the individual's benefit period. For the individual who is not insured,
the notice shall include the reason for the determination. Unless the
individual, within ten (10) days after such determination was mailed to
the individual's last known address, or otherwise delivered to the
individual, asks a hearing thereon before an administrative law judge,
such determination shall be final and benefits shall be paid or denied
in accordance therewith.
(b) Not later than January 1, 2010, the department shall establish an
unemployment claims compliance center. When an individual files an
initial claim after the unemployment claims compliance center is
established, the department, before making a determination that the
individual is eligible for benefits, shall compare the information
provided by the individual making the claim with information from the
separating employer concerning the individual's eligibility for benefits.
If the information provided by the individual making the claim does not
match the information from the separating employer, the department
may not pay the individual benefits and shall refer the individual's
claim to the department's unemployment claims compliance center for
investigation. The department shall provide a written notice to the
individual who filed the claim that the individual's claim is being
referred to the unemployment claims compliance center, including the
reason for the referral.
(c) After receiving a claim from the department, the unemployment
claims compliance center shall contact the separating employer that
provided information that does not match information provided by the
individual making the claim to obtain information about the claim that
is accurate and sufficient for the department to determine whether the
individual is eligible for benefits. The center shall also obtain from the
employer the name and address of a person to receive without delay
notices served on the employer concerning the claim.
(d) Except as provided in subsection (e), the department may not
pay the individual benefits under this article as long as the discrepancy
between the information provided by the individual and the information
provided by the individual's separating employer is unresolved. If the
information provided by an individual and the information provided by
the individual's separating employer does not match, the department
shall notify both the separating employer and the individual that they
have forty-eight (48) hours to resolve the discrepancy. If the
discrepancy is not resolved at the end of the forty-eighth hour, the
department shall use the information provided by the employer to
determine the individual's eligibility for benefits.
(e) If the employer does not respond to the inquiry from the
unemployment claims compliance center within five (5) days after the
date of the inquiry, the center shall report to the department that the
employer has not responded, and the department shall use the
information provided by the individual to determine the individual's
eligibility for benefits.
(f) (b) After the department makes a determination concerning the
individual's eligibility for benefits, The department shall promptly
furnish each employer in the base period whose experience or
reimbursable account is potentially chargeable with benefits to be paid
to such individual with a notice in writing of the employer's benefit
liability. The notice shall contain the date, the name and Social Security
account number of the individual, the ending date of the individual's
base period, the week ending date of the first week of the individual's
benefit period. the time by which the employer is required to respond
to the notice, and complete information about the rules of evidence and
standards of proof that the department will apply to determine the
validity of a claim, if an employer disputes the claim. The notice shall
further contain information as to the proportion of benefits chargeable
to the employer's experience or reimbursable account in ratio to the
earnings of such individual from such employer. Unless the employer
within ten (10) days after such notice of benefit liability was mailed to
the employer's last known address, or otherwise delivered to the
employer, asks a hearing thereon before an administrative law judge,
such determination shall be final and benefits paid shall be charged in
accordance therewith.
(g) (c) An employing unit, including an employer, having
knowledge of any facts which may affect an individual's eligibility or
right to waiting period credits or benefits, shall notify the department
of such facts within ten (10) days after the mailing of notice that a
former employee has filed an initial or additional claim for benefits on
a form prescribed by the department.
(h) (d) If, after the department determines that additional
information is necessary to make a determination under this chapter:
(1) the department makes a request in writing for additional
information from an employing unit, including an employer, on
a form prescribed by the department; and
(2) the employing unit fails to respond within ten (10) days after
the date the request is delivered to the employing unit;
the department shall make the determination with the information
available.
(i) (e) If:
(1) an employer subsequently obtains a determination by the
department that the employee is not eligible for benefits; and
(2) the determination is at least in part based on information that
the department requested from the employer under subsection (h),
(d), but which the employer failed to provide within ten (10) days
after the department's request was delivered to the employer;
the employer's experience account shall be charged an amount equal to
fifty percent (50%) of the benefits paid to the employee to which the
employee was not entitled.
(j) (f) If:
(1) the employer's experience account is charged under subsection
(i); (e); and
(2) the employee repays all or a part of the benefits on which the
charge under subsection (i) (e) is based;
the employer shall receive a credit to the employer's experience
account that is equal to the amount of the employee's repayment up to
the amount charged to the employer's experience account under
subsection (i). (e).
(k) (g) In addition to the foregoing determination of insured status
by the department, the deputy shall, throughout the benefit period,
determine the claimant's eligibility with respect to each week for which
the claimant claims waiting period credit or benefit rights, the validity
of the claimant's claim therefor, and the cause for which the claimant
left the claimant's work, or may refer such claim to an administrative
law judge who shall make the initial determination with respect thereto
in accordance with the procedure in section 3 of this chapter.
(l) (h) In cases where the claimant's benefit eligibility or
disqualification is disputed, the department shall promptly notify the
claimant and the employer or employers directly involved or connected
with the issue raised as to the validity of such claim, the eligibility of
the claimant for waiting period credit or benefits, or the imposition of
a disqualification period or penalty, or the denial thereof, and of the
cause for which the claimant left the claimant's work, of such
determination and the reasons thereof.
(m) (i) Except as otherwise hereinafter provided in this section
regarding parties located in Alaska, Hawaii, and Puerto Rico, unless
the claimant or such employer, within ten (10) days after the
notification required by subsection (k) (h) was mailed to the claimant's
or the employer's last known address or otherwise delivered to the
claimant or the employer, asks for a hearing before an administrative
law judge thereon, such decision shall be final and benefits shall be
paid or denied in accordance therewith.
(n) (j) For a notice of disputed administrative determination or
decision mailed or otherwise delivered to the claimant or employer
either of whom is located in Alaska, Hawaii, or Puerto Rico, unless the
claimant or employer, within fifteen (15) days after the notification
required by subsection (k) (h) was mailed to the claimant's or
employer's last known address or otherwise delivered to the claimant
or employer, asks for a hearing before an administrative law judge
thereon, such decision shall be final and benefits shall be paid or
denied in accordance therewith.
(o) (k) If a claimant or an employer requests a hearing under
subsection (m) (i) or (n), (j), the request therefor shall be filed with the
department in writing within the prescribed periods as above set forth
in this section and shall be in such form as the department may
prescribe. In the event a hearing is requested by an employer or the
department after it has been administratively determined that benefits
should be allowed to a claimant, entitled benefits shall continue to be
paid to said claimant unless said administrative determination has been
reversed by a due process hearing. Benefits with respect to any week
not in dispute shall be paid promptly regardless of any appeal.
(p) (l) A person may not participate on behalf of the department in
any case in which the person is an interested party.
(q) (m) Solely on the ground of obvious administrative error
appearing on the face of an original determination, and within the
benefit year of the affected claims, the commissioner, or a
representative authorized by the commissioner to act in the
commissioner's behalf, may reconsider and direct the deputy to revise
the original determination so as to correct the obvious error appearing
therein. Time for filing an appeal and requesting a hearing before an
administrative law judge regarding the determinations handed down
pursuant to this subsection shall begin on the date following the date
of revision of the original determination and shall be filed with the
commissioner in writing within the prescribed periods as above set
forth in subsection (g). (c).
(r) (n) Notice to the employer and the claimant that the
determination of the department is final if a hearing is not requested
shall be prominently displayed on the notice of the determination
which is sent to the employer and the claimant.
(s) (o) If an allegation of the applicability of IC 22-4-15-1(c)(8) is
made by the individual at the time of the claim for benefits, the
department shall not notify the employer of the claimant's current
address or physical location.".
Delete pages 12 through 16.
the final date of performing services for the contractor, as
provided in IC 22-2-15-26(e).
and when so amended that said bill do pass.