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Regular Session, 2012
SENATE BILL NO. 676 (Substitute of Senate Bill No. 437 by Senator Crowe)
BY SENATOR CROWE
UNEMPLOYMENT COMP. Provides for overpayment of benefits and the recovery thereof.
(CA-7s2.1(A)) (8/1/12)
AN ACT1
To amend and reenact R.S. 23:1513(A)(1), 1553(A), 1576, 1601(8), 1713(B) and (C), 1714,2
and 1726 and to enact R.S. 23:1531.1(E), relative to unemployment compensation;3
to provide for the penalty and interest account; to provide for filing certain4
documents; to provide for separation notices; to provide for method of calculation5
regarding the experience-rating account of an employer; to provide for6
disqualification of employee benefits subsequent to commission of a fraudulent act;7
to provide for the recovery of overpayment of benefits; to provide for the payment8
of certain benefits; and to provide for related matters.9
Be it enacted by the Legislature of Louisiana:10
Section 1. R.S. 23:1513(A)(1), 1553(A), 1576, 1601(8), 1713(B) and (C), 1714, and11
1726 are hereby amended and reenacted and R.S. 23:1531.1(E) is hereby enacted to read as12
follows: 13
§1513. Penalty and interest account14
A.(1) There is hereby created in the employment security administration fund15
an account which shall be known as the penalty and interest account. All interest,16
fines, and penalties, regardless of when the same became due and payable, collected17 SB NO. 676
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from employers and claimants under the provisions of this Chapter subsequent to1
January 1, 1951, shall, notwithstanding provisions of R.S. 23:1491, 1543 and 1551,2
be paid into this account, except as otherwise provided by this Chapter, and shall3
at no time be considered to be a part of the unemployment compensation fund.4
* * *5
§1531.1. Electronic filing of contribution and wage reports; employer registrations6
* * *7
E. The executive director may require all employers to electronically file8
all registrations and status reports due after January 31, 2014.9
* * *10
§1553. Noncharging of benefits; recoupment; social charge account; social charge11
tax rate12
A. Benefits charged after a requalification of a claimant pursuant to the13
requirements of R.S. 23:1601(1), (2), (3), or (10) shall not be charged against the14
experience-rating account of an employer who timely filed forms LOES-77,15
LOES-110, LOES-106, or LOES-152 and the separation was determined to be under16
disqualifying conditions when all of the following occurs:17
(1) The employer timely filed a separation notice alleging18
disqualification.19
(2) Either a response to a notice of claim filed or a response to a notice20
to base period employer has been filed.21
(3) The separation of the employee from the employer was determined22
to be under disqualifying conditions.23
* * *24
§1576. Notice of separation25
Each state board, commission, department, agency, or other employing26
authority of the state, including but not limited to school boards and police juries,27
employer shall file with the administrator a notice of separation from service in a28
form prescribed by the administrator with respect to each employee who leaves29 SB NO. 676
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its employ for any cause which may be potentially disqualifying and shall therein1
state provide the date of separation, a full explanation of and the cause or causes2
therefor, and all requested information about payments made to the separated3
employee. The notice shall be mailed, delivered or transmitted to the4
administrator and to the separated employee within three days after the date on5
which the separation from service occurred.6
* * *7
§1601. Disqualification for benefits8
An individual shall be disqualified for benefits:9
* * *10
(8)(a) For the week, or fraction thereof, with respect to which he makes a11
false statement or representation knowing it to be false, or knowingly fails to12
disclose a material fact in obtaining or increasing benefits, whether or not he is13
successful in obtaining or increasing benefits, or thereby otherwise due to his fraud14
receives any amount as benefits under this Chapter to which he was not entitled, for15
the remainder of the benefit year subsequent to the commission of the16
fraudulent act and continuing for the fifty-two weeks which immediately follow17
the week in which such determination was made. All benefits paid with respect to18
such weeks shall be immediately due and on demand paid in accordance with19
department regulations to the administrator for the fund and such individual shall not20
be entitled to further benefits until repayment has been made or the claim for21
repayment has prescribed. If information indicating a claimant has earned any22
unreported wages for weeks claimed is obtained by the administrator, prior to23
the administrator rendering a determination on the issue the claimant shall be24
notified by mail or other delivery method. The claimant shall have seven days25
from the date of mailing to respond, or if notice is not by mail, then the claimant26
shall have seven days from the delivery date of such notice to respond.27
(b) A claim for repayment under this Section shall prescribe against the state28
five ten years from the date the administrator determines that repayment is due. This29 SB NO. 676
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prescription shall be interrupted for the period of time during which an appeal is1
pending, by the filing of suit for collection by the administrator or by an2
acknowledgement or partial payment of the indebtedness. Any disqualification3
decision or determination pursuant to this Paragraph may be appealed in the same4
manner as from any other disqualification imposed under this Chapter.5
* * *6
§1713. Waiver of recovery and recovery of benefits improperly received by7
beneficiary8
* * *9
B. The issue of waiver of the right of recovery of any overpayment of10
benefits shall be heard upon any appeal of such determination or assessment of11
overpayment. The appeal referee, board of review, or any court of jurisdiction, or the12
administrator pursuant to the conditions under Subsection C, may waive the right of13
recovery of any overpaid benefits received by any person who has received such14
benefits under this Chapter while any conditions for the receipt thereof were not15
fulfilled in his case, or while he was disqualified from receiving such benefits,16
provided that the when all of the following occurs:17
(1) The receipt of said benefits did not come within the fraud provisions of18
R.S. 23:1601(8), the .19
(2) The overpayment was without fault of the claimant,. In determining20
whether the claimant was at fault, whether the claimant provided inaccurate21
information, failed to disclose a material fact, or knew or should have known22
that he was not entitled to benefits shall be considered, and any such act by the23
claimant shall preclude the granting of a waiver. and the24
(3) The recovery thereof would defeat the purpose of benefits otherwise25
authorized or the recovery thereof would be against equity and good conscience. In26
determining whether the recovery of the overpayment would be against equity27
and good conscience, whether recovery would render the claimant unable to28
cover ordinary living expenses for six months, and whether the claimant was29 SB NO. 676
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notified that a reversal on appeal would result in an overpayment of benefits1
shall be considered.2
C. If a claimant who is assessed an overpayment does not file an appeal of3
such assessment, or if a claimant files an untimely appeal to the appeal referee, he4
may then submit to the administrator a request for waiver of overpayment in5
accordance with the regulations established by the administrator. The administrator6
may waive the right of recovery of any such overpaid benefits received by the7
claimant under the same criteria as above stated in Subsection B. The administrator8
shall issue a notice of determination either granting or denying the request for waiver9
of the overpayment. If the claimant disagrees with the determination, he may file an10
appeal as provided for in R.S. 23:1629 et seq.11
D(1) If the receipt of benefits causing an overpayment is not waived,12
including fraud cases covered under R.S. 23:1601(8), the amount due Any amount13
of benefits for which a person is determined to have been overpaid and the14
overpayment is not waived shall, in the discretion of the administrator, be either15
deducted from any benefits payable to the claimant under this Chapter or he shall16
repay the administrator for the unemployment compensation fund a sum equal to the17
amount so received by him, and such sum shall be collectible in the manner provided18
for the collection of past due collections.19
(2) A claim for repayment of benefits which did not come within the fraud20
provisions of R.S. 23:1601(8) shall prescribe against the state three five years from21
the date of the expiration of the benefit year of the claim on which the overpayment22
occurred. This prescription shall be interrupted for the period of time during which23
an appeal is pending, by the filing of suit for collection by the administrator, by an24
acknowledgement or partial payment of the indebtedness, or as provided by R.S.25
23:1741 and 1742.26
* * *27
(4) Whenever an overpayment has been assessed in the amount of one28
hundred dollars or more, and the claimant fails to repay the overpayment29 SB NO. 676
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within thirty days after the claimant's appeal rights have been exhausted and1
the determination becomes final, the administrator or his duly authorized2
representatives may recover such overpayments through a garnishment of the3
wages of the claimant under the laws of this state unless the claimant has4
entered into a voluntary repayment plan and has timely made all payments5
required thereby.6
§1714. Penalties7
A. A civil penalty shall be assessed if benefits are determined to have8
been overpaid as a result of a fraud disqualification made pursuant to R.S.9
23:1601(8) in the amount of twenty dollars or twenty-five percent, whichever is10
greater, of the total overpayment amount. Except as otherwise provided in11
Subsection C and any provisions of law in this state relating to the deposit,12
administration, release, or disbursement of money in the possession or custody13
of this state to the contrary notwithstanding, fifteen percent of each such14
overpayment amount recovered shall be deposited with the Secretary of the15
Treasury of the United States of America to the credit of the account of this16
state in the Unemployment Trust Fund established and maintained pursuant to17
42 U.S.C.A. §1101, et seq., as amended, and ten percent of each such18
overpayment amount recovered shall be deposited in the penalty and interest19
account established by R.S. 23:1513 and used to offset collection expenses. A20
B. In all other instances, a penalty shall be assessed, if legal collection21
efforts are pursued, the claimant does not voluntarily repay overpaid benefits22
within thirty days after the claimant's appeal rights have been exhausted and23
the determination becomes final in the amount of twenty dollars or twenty-five24
percent, whichever is greater, of the total overpayment debt unless the claimant has25
entered into a voluntary repayment plan and has timely made all payments26
required thereby. Penalties collected under this Section shall be deposited in the27
penalty and interest account established by R.S. 23:1513 and used to offset28
collection expenses.29 SB NO. 676
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C. No penalties may be withheld from amounts recovered by an offset1
from unemployment compensation benefits.2
* * *3
§1726. Legal effect of assessments; when collectible4
A. All assessments under this part shall be tantamount to and the equivalent5
of judgments of courts. The assessments are final when made subject only to6
modification by an appeal as provided in R.S. 23:1728 or reassessment as provided7
in R.S. 23:1725. Assessments are immediately collectible when made and any8
employer may waive any delays and notices provided for in this part.9
B. No employer against whom an assessment under this Part is in effect10
and whose right to appeal the assessment is exhausted may submit a bid or11
proposal for or obtain any contract pursuant to Chapter 10 of Title 38 of the12
Louisiana Revised Statutes of 1950 and Chapters 16 and 17 of Title 39 of the13
Louisiana Revised Statutes of 1950. This prohibition shall cease upon payment14
in full of the amount due under the assessment.15
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Carla S. Roberts.
DIGEST
Present law provides that an individual shall be disqualified for unemployment
compensation benefits if the administrator of the Louisiana Workforce Commission finds
that the employee has left employment from a base period or subsequent employer without
good cause attributable to a substantial change made to the employm ent by the employer.
Present law provides that such disqualification shall continue until such time as the claimant
can requalify by demonstrating that he has done the following:
1. Has been paid wages for work, subject to the unemployment insurance law,
equivalent to at least 10 times his weekly benefit amount following the week in
which the disqualifying separation occurred.
2. Has not left the last employer under disqualifying circumstances.
Present law creates the penalty and interest account within the employment security
administration fund into which account is deposited all interest, fines, and penalties collected
from employers. Proposed law additionally requires all interest, fines, and penalties
collected from claimants to be paid into the account.
Present law authorizes the secretary of the department to require certain employers to file
both contribution and wage reports by electronic means. Proposed law further authorizes
the secretary to require employers to electronically file all registrations and status reports due SB NO. 676
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after Jan. 31, 2014.
Proposed law retains present law but provides that benefits charged after a requalification
of a claimant shall not be charged against the experience-rating account of an employer
when all of the following occur:
1. The employer timely filed a separation notice alleging disqualification.
2. Either a response to a notice of claim filed or a response to a notice to base period
employer has been filed.
3. The separation of the employee from the employer was determined to be under
disqualifying conditions .
Present law requires each state board, commission, department, agency, or other employing
authority of the state, including but not limited to, school boards and police juries, to file
with the administrator a notice of separation from service for each employee who leaves its
employ for any cause which may be potentially disqualifying and provide the date of
separation and the cause therefor. Requires the notice to be mailed or transmitted within
three days after the date the separation occurred.
Proposed law retains present law but changes state board, commission, department, agency,
or other employing authority of the state to cover all employers and requires them to file
with the administrator a notice of separation from service.
Present law provides that an individual shall be disqualified for benefits for the 52 weeks
immediately following the week in which it was determined that he committed a fraudulent
act relating to obtaining or increasing benefits.
Proposed law retains present law but makes the disqualification applicable to the remainder
of the benefit year after the commission of the fraudulent act and then continuing for the 52
weeks following the determination of the fraudulent act.
Proposed law provides that if information indicating a claimant has earned any unreported
wages for weeks claimed is obtained by the administrator prior to the administrator
rendering a determination on the issue, the claimant shall be notified by mail or other
delivery method. Proposed law provides that he shall have seven days from the date of
mailing to respond, or if notice is not by mail, then he shall have seven days from the
delivery date of such notice to respond.
Present law provides that a claim for repayment shall prescribe against the state five years
from the date the determination is made that repayment is due. Proposed law increases the
prescriptive period from five years to ten years.
Present law provides that an individual receiving benefit payments to which he was not
entitled is liable to repay such benefits. Provides for a waiver of the right of recovery of any
overpayment of benefits under certain conditions. Proposed law specifies that if the benefits
were not gained through fraud and if the overpayment was not the fault of the claimant and
the recovery would be against equity and good conscience, a waiver may be issued.
Present law provides for a three-year prescriptive period for a claim for repayment of
benefits which were not gained through fraud. Proposed law increases the prescriptive
period to five years.
Proposed law provides that when an overpaymen t is $100 or more, upon default, the
administrator may recover the overpayment through a garnishment of the employee's wages.
Present law provides that a penalty shall be assessed if legal collection efforts are pursued, SB NO. 676
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in the amount of $20 or 25%, whichever is greater, of the total overpayment debt.
Proposed law retains present law but provides that the penalty shall be assessed if the
claimant does not voluntarily repay overpaid benefits within 30 days of the date of mailing
of notice of the overpayment.
Proposed law provides that the penalty to be assessed if overpayment of benefits was
determined to be due to fraud committed by the employee shall be in the amount of $20 or
100%, whichever is greater, of the total overpayment debt.
Proposed law requires 15% of any such amounts collected to be deposited with the U.S. Sec.
of the Treasury to credit the account of the state in the Unemployment Trust Fund and 10%
to be deposited in the penalty and interest account to offset collection expenses. Prohibits
withholding penalties from amounts recovered by an offset from unemployment
compensation benefits.
Present law provides that the collection of contributions, assessments or penalties which
were owed by employers but not properly remitted to the department are tantamount and
equivalent to judgment executed by a court.
Proposed law retains present law but prohibits any employer against whom an assessment
has been levied from submitting a bid or proposal for any public contracts until full payment
of the amount due under the assessment is made.
Effective August 1, 2012.
(Amends R.S. 23:1513(A)(1), 1553(A), 1576, 1601(8), 1713(B) and (C), 1714, and 1726;
adds R.S. 23:1531.1(E))