An Act
ENROLLED SENATE
BILL NO. 794 By: Leewright of the Senate
and
Wallace of the House
An Act relating to the Oklahoma Employment Security
Commission; amending 40 O.S. 2011, Section 1 -210, as
last amended by Section 2, Chapter 342, O.S.L. 2019
(40 O.S. Supp. 2020, Section 1 -210), which relates to
employment; modifying statut ory language; deleting
gender references; amending 40 O.S. 2011, Section 1 -
224, as amended by Section 2, Chapter 71, O.S.L. 2013
(40 O.S. Supp. 2020, Section 1 -224), which relates to
filing; making e-file preference for filing;
requiring notice for other f iling methods; deleting
statutory language; amending 40 O.S. 2011, Section 2 -
203, as last amended by Section 3, Chapter 251,
O.S.L. 2019 (40 O.S. Supp. 2020, Section 2 -203),
which relates to claims; providing digital portal for
claims; amending 40 O.S. 201 1, Section 2-209, as last
amended by Section 2, Chapter 14, O.S.L. 2018 (40
O.S. Supp. 2020, Section 2 -209), which relates to
benefits for nonprofit employers; exempting certain
persons from certain benefits; amending 40 O.S. 2011,
Section 2-406, as last amended by Section 3, Chapter
220, O.S.L. 2014 (40 O.S. Supp. 2020, Section 2 -406),
which relates to discharge for misconduct; modifying
statutory language; amending Sect ion 1, Chapter 338,
O.S.L. 2016 (40 O.S. Supp. 2020, Section 2 -422),
which relates to seasonal workers; providing certain
benefits between seasonal and nonseasonal periods;
providing for claims on terminated seasonal
employees; amending 40 O.S. 2011, Secti on 2-503, as
last amended by Section 5, Chapter 251, O.S.L. 2019
(40 O.S. Supp. 2020, S ection 2-503), which relates to
notice and objections; construing certain notices;
ENR. S. B. NO. 794 Page 2
providing certain notices by e -filing; stating time
for notices; permitting objections by e-filing;
listing reasons for objection; amending 40 O.S. 2011,
Section 2-610, which relates to judicial review;
modifying language; amending 40 O.S. 2011, Section 2 -
616, as amended by Section 7, Chapter 71, O.S.L. 2013
(40 O.S. Supp. 2020, Section 2 -616), which relates to
overpayment; distinguishing fraud and claimant error
in overpayment; providing appeal process; stating
time for appeal; making determination final without
appeal; amending 40 O.S. 2011, Section 2 -801, as
amended by Section 9, Chapter 14, O.S.L. 2018 (40
O.S. Supp. 2020, Section 2 -801), which relates to
child support collection; modifying methods for
notification of child support; deleting statutory
language; amending 40 O.S. 2011, Section 3 -106.1,
which relates to benefit wages charged ; exempting
certain benefit wages for pandemic; amending 40 O.S.
2011, Section 3-307, which relates to remittances;
providing for automatic clearinghouse payments;
authorizing certain payment methods; establishing a
fiduciary duty to return overpayments to employers;
allowing for forfeiture after certain time;
construing when fiduciary duty is complete;
prohibiting employer request for overpayment return
after certain time; directing deposit of certain
returns to certain account; amending 40 O.S. 2011,
Section 4-108, which relates to executive director;
deleting authority to appoint certain p ersons;
deleting authority to reinstate personnel; amending
40 O.S. 2011, Section 4 -311, which relates to
published rules; requiring reports be published on
website; amending 40 O.S. 2011, Section 4 -312, as
amended by Section 130, Chapter 304, O.S.L. 2012 (40
O.S. Supp. 2020, Section 4 -312), which relates to
personnel compensation; deleting authority to
delegate powers; amending 40 O.S. 2011, Section 4 -
508, as last amended by Section 10, Chapter 251,
O.S.L. 2019 (40 O.S. Supp. 2020, Section 4 -508),
which relates to confidential information; deleting
Metropolitan Planning Organization for receipt of
certain information; adding Oklahoma Department of
ENR. S. B. NO. 794 Page 3
Career and Technology Ed ucation and Oklahoma State
Regents for Higher Education for receipt of certain
information; authorizing certain partners of the
Workforce Innovation and Opportunity Act to receive
certain information; amending 40 O.S. 2011, Section
5-107, which relates to wrongful disclosure of
information; expanding wrongful disclosure of
information; providing for codification; and
providing an effective date.
SUBJECT: Oklahoma Employment Security Commission
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHO MA:
SECTION 1. AMENDATORY 40 O.S. 2011, Section 1 -210, as
last amended by Section 2, Chapter 342, O.S.L. 2019 (40 O.S. Supp.
2020, Section 1-210), is amended to read as follows:
Section 1-210. EMPLOYMENT.
"Employment" means:
(1) Any service, including service in interstate commerce,
performed by:
(a) any officer of a corporation; or
(b) any individual who, under the usua l common-law rules
applicable in determining the employer -employee
relationship, as provided in paragraph (14) of this
section, has the status of an employee.
(2) (a) any service, including service in interstate commerce,
performed by any individual other than an individual
who is an employee under paragraph (1) of this section
who performs services for remu neration for any person:
(i) as an agent-driver or commission -driver engaged
in distributing meat products, vegetable
ENR. S. B. NO. 794 Page 4
products, fruit products, bakery p roducts,
beverages other than milk, or laundry or dry
cleaning services, for his or her the
individual's principal; or
(ii) as a traveling or city salesperson, other than as
an agent-driver or commission -driver, engaged
upon a full-time basis in the solici tation on
behalf of, and the transmission to, his or her an
individual's principal, except for sidelin e sales
activities on behalf of some other person, of
orders from wholesalers, retailers, contractors ,
or operators of hotels, restaurants or other
similar establishments for merchandise for resale
or supplies for use in their business operations;
(b) provided, the term "employment" shall include services
described in divisions (i) and (ii) of subparagraph
(a) of this paragraph if:
(i) the contract of servi ce contemplates that
substantially all of the services are to be
performed personally by such indivi dual;
(ii) the individual does not have a substantial
investment in facilities used in connection with
the performance of the services, other than in
facilities for transportation; and
(iii) the services are not in the nature of a single
transaction that is not part of a continuing
relationship with the person for whom the
services are performed.
(3) Service performed in the employ of this state or any of it s
instrumentalities or any political subdivision thereof or any of its
instrumentalities or any i nstrumentality of more than one of the
foregoing or any instrumentality of any of the foregoing and one or
more other states or political subdivisions; provide d, that such
service is excluded from "employment" as defined in the Federal
Unemployment Tax Act , 26 U.S.C., Section 3306(c)(7), and is not
excluded from "employment" under paragraph (7) of this section.
ENR. S. B. NO. 794 Page 5
(4) Service performed by an individual in the empl oy of a
community chest, fund, foundation or corporation, organized and
operated exclusively for religious, charitable, scientific, testing
for public safety, literary or educational purposes, or for the
prevention of cruelty to children or animals, no par t of the net
earnings of which inures to the benefit of any private shareholder
or individual, no substantial part of the activities of which is
carrying on propaganda, or otherwise attempting to influence
legislation and which does not participate in, or intervene in,
including the publishing or distributing of statements, any
political campaign on behalf of any candidate for public office;
provided that such organization had four or more individuals in
employment for some portion of a day in each of twent y (20)
different weeks, whether or not such weeks were consecutive, within
either the calendar y ear or preceding calendar year, regardless of
whether they were employed at the same moment of time.
(5) Service performed by an individual in agricultural lab or as
defined in subparagraph (a) of paragraph (15) of this section when:
(a) the service is performed for a person who:
(i) during any calendar quarter in either the
calendar year or the preceding calendar year,
paid remuneration in cash of Twenty Thousan d
Dollars ($20,000.00) or more to individuals
employed in agricultural labor; or
(ii) for some portion of a day in each of twenty (20)
different calendar weeks, whether or not the
weeks were consecutive, in either the calendar
year or the preceding calenda r year, employed in
agricultural labor ten or more individuals,
regardless of whether they w ere employed at the
same moment of time.
(b) for the purposes of this paragraph any individual who
is a member of a crew furnished by a crew leader to
perform service in agricultural labor for any other
person shall be treated as an employee of the crew
leader:
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(i) if the crew leader holds a valid certificate of
registration under the Farm Labor Contractor
Registration Act of 1963, Public Law 95 -562, 29
U.S.C., Sections 1801 through 1872; or
substantially all the members of the crew operate
or maintain tractors, mechanized harvesting or
crop-dusting equipment, or any other mechanized
equipment, which is provided by the crew leader;
and
(ii) if the individual is not an employee of the other
person within the meaning of paragraph (1) of
this section or subp aragraph (d) of this
paragraph.
(c) for the purposes of this paragraph, in the case of any
individual who is furnished by a crew leader to
perform service in agricultu ral labor for any other
person and who is not treated as an employee of the
crew leader under subparagraph (b) of this paragraph:
(i) the other person and not the crew leader shall be
treated as the employer of the individual; and
(ii) the other person sha ll be treated as having paid
cash remuneration to the individual in an amount
equal to the amount of cash remuneration paid to
the individual by the crew leader, either on his
or her the individual's own behalf or on behalf
of the other person, for the ser vice in
agricultural labor performed for the other
person.
(d) for the purposes of th is paragraph, the term "crew
leader" means an individual who:
(i) furnishes individuals to perform service in
agricultural labor for any other person;
(ii) pays, either on his or her the individual's own
behalf or on behalf of another person, the
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individuals so furnished by the crew leader for
the service in agricultural labor performed by
them; and
(iii) has not entered into a written agreement with the
other person (farm operator) under which the
individual is designated as an employee of the
other person.
(6) The term "employment" shall include domestic service in a
private home, local college club or local chapter of a college
fraternity or sorority performed for a pers on or entity who paid
cash remuneration of One Thousand Dollars ($1,000.00) or mo re to
individuals employed in domestic service in any calendar quarter in
the calendar year or the preceding calendar year.
(7) For the purposes of paragraphs (3) and (4) of this section
the term "employment" does not apply to service performed:
(a) in the employ of:
(i) a church or convention or association of
churches;
(ii) an organization which is operated primarily for
religious purposes and which is operated,
supervised, controlled, or principally supported
by a church or convention or association of
churches; or
(iii) an elementary or secondary school which is
operated primarily for religious purposes, which
is described in 26 U.S.C., Section 501(c)(3), and
which is exempt from tax under 26 U.S.C., Section
501(a);
(b) by a duly ordained, commiss ioned or licensed minister
of a church in the exercise of his or her ministry or
by a member of a religious order in the exercise of
duties required by the order;
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(c) in the employ of a governmental entity referred to in
paragraph (3) of this section if t he service is
performed by an individual in the exercise of duties:
(i) as an elected official;
(ii) as a member of a legislative body, or a member of
the judiciary of a state or pol itical
subdivision;
(iii) as a member of the State National Guard or Ai r
National Guard;
(iv) as an employee serving on a temporary basis in
case of fire, storm, snow, earthquake, flood or
similar emergency;
(v) in a position which, under or pursuant to th e
laws of this state, is designated as a major
nontenured policymakin g or advisory position, or
a policymaking or advisory position the
performance of the duties of which ordinarily
does not require more than eight (8) hours per
week;
(vi) as an election official or election worker if the
amount of remuneration received by the individual
during the calendar year for services as an
election official or election worker is less than
One Thousand Dollars ($1,000.00);
(d) by an individual who is participating or enrolled in a
program of an organization that provides
rehabilitation through work for individuals whose
earning capacity is impaired by age, physical or
mental deficiency, or injury, or a program of an
organization that provides work for individuals who,
because of their impaired mental or physical capacity
cannot be readily absorbed into the competitive labor
market; provided that the services are performed by a
program participant on real property owned or leased
directly by the organization or by a pro gram
ENR. S. B. NO. 794 Page 9
participant working under a special certificate issued
by the U.S. Secretary of Labor pursuant to 29 U.S.C.,
Section 214(c) and 29 C.F.R., Section 525.1 et seq.;
(e) as part of an unemployment work -relief or work-
training program assisted or financed in whole or in
part by any federal agency or an agency of a state or
political subdivision thereof or of an Indian tribe,
by an individual receiving such work -relief or work-
training; or
(f) by an inmate of a custodial or penal institution.
(8) The term "employment" shall include the service of an
individual who is a citizen of the United States, performed outside
the United States, except in Canada, in the employ of an American
employer other than service which is deemed "employment" under the
provisions of paragraph (11) or (12) of this section or the parallel
provisions of another state's law, if:
(a) the employer's principal place of business in the
United States is located in this state;
(b) the employer has no place of business in the United
States, but:
(i) the employer is an individual who is a resident
of this state;
(ii) the employer is a corporation which is organized
under the laws of this state; or
(iii) the employer is a partnership or a trust and the
number of the partners or trustees who are
residents of this state is greater than the
number who are residents of any one other state;
(c) none of the criteria of subparagraphs (a) and (b) of
this paragraph are met but the employer has elected
coverage in this state or, the employer having failed
to elect coverage in any state, the individual has
ENR. S. B. NO. 794 Page 10
filed a claim for benefits, based on such service,
under the laws of this state;
(d) an "American employer", for purposes of this
subsection, means a person who is:
(i) an individual who is a resident of t he United
States;
(ii) a partnership if two -thirds (2/3) or more of the
partners are residents of the United States;
(iii) a trust, if all of the trustees are residents of
the United States; or
(iv) a corporation organized under the laws of the
United States or of any state; and
(e) the term "United States" , for the purposes of this
subsection, includes the states, the District of
Columbia, the Commonwealth of Puerto Rico and the
Virgin Islands.
(9) Notwithstanding paragraph (11) of this section, all servi ce
performed by an officer or member of the crew of an American vessel
on or in connection with the vessel, if the operating office, from
which the operations of the vessel operating on navigable waters
within, or within and without, the United States are ordinarily and
regularly supervised, managed, direc ted and controlled is within
this state.
(10) Notwithstanding any other provisions of the Employment
Security Act of 1980, "employment":
(a) includes any service with respect to which a tax is
required to be paid under any federal law imposing a
tax against which credit may be taken for
contributions required to be paid into a state
unemployment fund; and
(b) includes any service which is required to be
"employment" for full tax credit to be allowed agains t
ENR. S. B. NO. 794 Page 11
the tax imposed by the Federal Unemployment Ta x Act of
1954, Public Law 591, Chapter 736, as amended, 26
U.S.C., Section 3301 et seq.
(11) The term "employment" shall include an individual's entire
service, performed within or both within and without th is state if:
(a) the service is localized in t his state; or
(b) the service is not localized in any state but some of
the service is performed in this state and:
(i) the individual's base of operations, or, if there
is no base of operations, then the place from
which the individual's employment is d irected or
controlled is in this state; or
(ii) the individual's base of operations or place from
which the service is directed or controlled is
not in any state in which some part of the
service is performed but the individual's
residence is in this stat e.
(12) (a) Services covered by an election pursuant to Section 3 -
203 of this title; and
(b) services covered by an arrangement pursuant to Section
4-701 et seq. of this title between the Oklahoma
Employment Security Commission and the agency charged
with the administration of any other state or federal
unemployment compensation law, pursuant to which all
services performed by an individual for an employing
unit are deemed to be performed entirely within this
state,
shall be deemed to be employment if th e Commission has approved an
election of the employing unit for whom such services are performed,
pursuant to which the entire service of such individual during the
period covered by such election is deemed to be ins ured work.
(13) Service shall be deeme d to be localized within a state if:
ENR. S. B. NO. 794 Page 12
(a) the service is performed entirely within such state;
or
(b) the service is performed both within and without such
state, but the service performed without such state is
incidental to the individual's service withi n the
state; for example, is temporary or transitory in
nature or consists of isolated transactions.
(14) Notwithstanding any other provision of this subsection,
services performed by an individual for wages shall be d eemed to be
employment subject to th e Employment Security Act of 1980 if the
services are performed by the individual in an employer -employee
relationship with the employer using the 20 -factor test used by the
Internal Revenue Service of the United States Department of Treasury
in Revenue Ruling 87-41, 1987-1 C.B. 296. The Oklahoma Employment
Security Commission shall have the excusive exclusive authority to
make a determination of whether an individual is an independent
contractor or employee.
(15) The term "employment" shall not include:
(a) services performed by an individual in agricultural
labor, except as provided under paragraph (5) of this
section. Services performed by an individual who is a
nonresident alien admitted to the United States to
perform agricultural labor, pursuant t o 8 U.S.C.,
Sections 1101(a), 1184(c) and 1188. For purposes of
this subparagraph, the term "agricultural labor" means
remunerated service performed in agricultural labor as
defined in the Federal Unemployment Tax Act, 26
U.S.C., Section 3306(k);
(b) domestic service, except as provided under paragraph
(6) of this section, in a private home, local college
club, or local chapter of a college fraternity or
sorority;
(c) service performed by an individual in the employ of
his or her son, daughter, or spouse , and service
performed by a child under the age of twenty -one (21)
ENR. S. B. NO. 794 Page 13
in the employ of his or her father or mother, or both
father and mother;
(d) service performed in the employ of the United States
government or an instrumen tality of the United States
exempt under the Constitution of the United States
from the contributions imposed by the Employment
Security Act of 1980, except that to the extent that
the Congress of the United States shall permit states
to require any instru mentalities of the United State s
to make payments into an unemployment fund under a
state unemployment compensation law, all of the
provisions of the Employment Security Act of 1980
shall be applicable to such instrumentalities, and to
services performed f or such instrumentalities, in t he
same manner, to the same extent, and on the same terms
as to all other employers, employing units,
individuals and services; provided that if this state
shall not be certified for any year by the Secretary
of Labor of the United States under the Federal
Internal Revenue Code, 26 U.S.C., Section 3304(c), the
payments required of such instrumentalities with
respect to the year shall be refunded by the
Commission from the fund in the same manner and within
the same period as i s provided in Section 3 -304 of
this title with respect to contributions erroneously
collected;
(e) service with respect to which unemployment
compensation is payable under an unemployment
compensation system established by an act of Congress;
(f) service performed in the employ of a f oreign
government, including service as a consul or other
officer or employee or a nondiplomatic representative;
(g) service performed in the employ of an instrumentality
wholly owned by a foreign government:
(i) if the service is of a character similar to that
performed in foreign countries by employees of
ENR. S. B. NO. 794 Page 14
the United States government or of an
instrumentality thereof, and
(ii) if the Commission finds that the United States
Secretary of State has certified to the United
States Secretary of the Treasury t hat the foreign
government, with respect to whose instrumentality
exemption is claimed, grants an equivalent
exemption with respect to similar service
performed in the foreign country by employees of
the United States government a nd of
instrumentalities th ereof;
(h) service covered by an arrangement between the
Commission and the agency charged with the
administration of any other state or federal
unemployment compensation law pursuant to which all
services performed by an individu al for an employing
unit during the period covered by such employing
unit's duly approved election, are deemed to be
performed entirely within the jurisdiction of such
other state or federal agency;
(i) service performed as a student nurse in the employ of
a hospital or a nurses' training school by an
individual who is enrolled and is regularly attending
classes in a nurses' training school chartered or
approved pursuant to state law; and service performed
as an intern in the employ of a hospital by an
individual who has completed a four-year course in a
medical school chartered or approved pursuant to state
law;
(j) service performed by an individual for a person, firm,
association, trust, partnership or corporation as an
insurance agent, or as an insurance solicitor or as a
licensed real estate agent, if all such service
performed by such individual for such person is
performed for remuneration solely by way of
commissions or fees;
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(k) service performed by an individual under the age of
eighteen (18) in the delivery and distribu tion of
newspapers or shopping news, not including delivery or
distribution to any point for subsequent delivery or
distribution, and services performed by an individual
eighteen (18) years of age or older who meets the
definition of a "direct seller" as d efined in 26
U.S.C., Section 3508(b)(2), that states in pertinent
part:
(i) the individual must be engaged in the delivery or
distribution of newspapers or shopping news,
including any services directly related to such
trade or business,
(ii) substantially all the remuneration, whether or
not paid in cash, for the performance of the
services described in division (i) of this
subparagraph is directly related to sales or
other output, including the performance of
services, rather than th e number of hours wo rked,
and
(iii) the services performed by the individual are
performed pursuant to a written contract between
the person and the person for whom the services
are performed and the contract provides that the
person will not be treated as an employee with
respect to the services;
(l) service performed in the employ of a school, college
or university, if the service is performed:
(i) by a student who is enrolled and is regularly
attending classes at the school, college, or
university, or
(ii) by the spouse of the student, if the spouse is
advised, at the time the spouse commences to
perform the service, that:
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(I) the employment of the spouse to perform the
service is provided under a program to
provide financial assistance to the student
by the school, college, or university, and
(II) the employment will not be covered by any
program of unemployment insurance;
(m) service performed by an individual who is enrolled at
a nonprofit or public educational institution which
normally maintains a reg ular faculty and curriculum
and normally has a regularly organized body of
students in attendance at the place where its
educational activities are carried on as a student in
a full-time program, taken for credit at the
institution, which combines academic instruction with
work experience, if the service is an integral part of
the program, and the institution has so certified to
the employer, except that this provision shall not
apply to service performed in a program established
for or on behalf of an empl oyer or group of employers;
(n) service performed in the employ of a hospital, if the
service is performed by a patient of the hospital;
(o) services performed by cooperative extension personnel
holding federal appointments employed by state
institutions of higher learning;
(p) earnings of employees being paid by state warrants who
are presently covered by the Federal Unemployment
Compensation Act, 5 U.S.C., Section 8501 et seq., by
virtue of their federal status;
(q) cosmetology services performed by an in dividual in a
beauty shop, as defined by Section 199.1 of Title 59
of the Oklahoma Statutes, pursuant to an agreement
whereby the owner of the beauty shop leases or rents
facilities for cosmetology to such individual;
(r) barbering services performed by an individual in a
barber shop, as defined by Section 61.5 of Title 59 of
ENR. S. B. NO. 794 Page 17
the Oklahoma Statutes, pursuant to an agreement
whereby the owner of the barber shop leases or rents
facilities for barbering to such individual;
(s) services performed as a participan t in a work or
training program administered by the Department of
Human Services;
(t) riding services performed by a jockey and services
performed by a trainer of race horses racehorses in
preparation for and during an approved race meeting
licensed by the Oklahoma Horse Racing Commission;
(u) service performed by an individual whose remuneration
consists solely of commissions, overrides, bonuses,
and differentials related to sales or other output
derived from in-person sales to, or solicitation of
orders from, ultimate consumers primarily in the home,
or otherwise than in a permanent retail establishment;
(v) service performed by a person, commonly referred to as
"owner-operator", who owns or leases a truck -tractor
or truck for hire, provided the owner -operator
actually operates the truck-tractor or truck and,
further, that the entity contracting with the owner -
operator is not the lessor of the truck -tractor or
truck;
(w) services performed as a chopper of cotton who weeds or
thins cotton crops by hand or ho e. This subsection
shall be interpreted and applied consistently with the
Federal Unemployment Tax Act, 26 U.S.C., Sections
3304(a)(6)(A) and 3306(k);
(x) services performed for a private for -profit person or
entity by an individual as a landman:
(i) if the individual is engaged primarily in
negotiating for the acquisition or divestiture of
mineral rights or negotiating business agreements
that provide for the exploration for or
development of minerals,
ENR. S. B. NO. 794 Page 18
(ii) if substantially all remuneration paid in cash o r
otherwise for the performance of the services is
directly related to the completion by the
individual of the specific tasks contracted for
rather than to the number of hours worked by the
individual, and
(iii) if the services performed by the individual are
performed under a written contract between the
individual and the person for whom the services
are performed; provided that the individual is to
be treated as an independent contractor and not
as an employee with respect to the services
provided under the contract; or
(y) services performed by persons working under an
AmeriCorps grant from the Corporation for National
Service made pursuant to the National and Community
Service Act of 1990 (NCSA) codified at 42 U.S.C.,
Section 12501 et seq.
SECTION 2. AMENDATORY 40 O.S. 2011, Section 1 -224, as
amended by Section 2, Chapter 71, O.S.L. 2013 (40 O.S. Supp. 2020,
Section 1-224), is amended to read as follows:
Section 1-224. FILE.
A. For purposes of this section , "OESC 2020-21 business process
transformation" means a change from paper process to integrated
digital technology. Upon completion of the OESC 2020 -21 business
process transformation, electronic e -filing will be the Commission's
preferred filing method for tendering an d receiving documents. All
claimants and employers tendering documents to the Commission will
be expected to tender the documents electronically. If the claimant
or employer has elected to utilize other means of transmittal , it
will be the responsibility of the claimant or employer to notify the
Commission of this preference.
B. When any document is required to be filed by the provisions
of the Employment Security Act of 1980 or the rules promulgated
under the authority of the Employment Security Act of 1980 with the
ENR. S. B. NO. 794 Page 19
Oklahoma Employment Security Commission, any of its representatives,
or the Board of Review for the Oklahoma Employment Security
Commission, the term "file", "files", or "filed" shall be defined as
follows:
1. Hand-delivered to the central administrative office of the
Oklahoma Employment Security Commission by the close of business on
or before the date due;
2. Telefaxed to the telefax number indicated on the
determination letter, order or other document issued by the Oklahoma
Employment Security Commission by midnight on or before the date
due. Timely telefaxing shall be determined by the date and time
recorded by the Commission's telefax equipment;
3. Mailed with sufficient postage and properly addressed to the
address indicated on th e determination letter, order or other
document issued by the Oklahoma Employment Security Commission on or
before the date due. Timely mailing shall be determined by the
postmark. If there is no proof from the post office of the date of
mailing, the date of receipt by the Commission shall constitute the
date of filing; or
4. Electronically transmitted via data lines Electronic e-
filing to the Oklahoma Employment Security Commission, as directed
by the instructions on the determination letter, order or other
document issued by the Commission, by midnight on or before the date
due. Timely transmission shall be determined by the Commission's
transmission log file.
B. C. If the Employment Security Act of 1980 or the rules
promulgated under the Employment Security Act of 1980 require that a
document be filed with a court or any other agency of this state,
the term "file", "files" or "filed" shall be defined by the
statutes, rules or practice governing that court or agency.
SECTION 3. AMENDATORY 40 O.S. 2011, Section 2 -203, as
last amended by Section 3, Chapter 251, O.S.L. 2019 (40 O.S. Supp.
2020, Section 2-203), is amended to read as follows:
Section 2-203. CLAIM.
ENR. S. B. NO. 794 Page 20
A. An unemployed individual must file an initial claim for
unemployment benefits by calling an Oklahoma Employment Security
Commission claims representative in a Commission Call Center, by
completing the required forms through the Internet Claims service
provided by the Commission, or by completing all forms necessar y to
process an initial claim in a local office of the Commission or any
alternate site designated by the Commission to take unemployment
benefit claims. The Commission may obtain additional information
regarding an individual's claim through any form of
telecommunication, writing, or interview. An unemployed individual
must file a claim in writing or by telecommunication for or by
Internet utilizing the digital services portal to create an account
to access benefits with respect to each week in accordanc e with such
rule as the Commission may prescribe.
B. 1. During the process of filing an initial claim for
unemployment benefits, the claimant shall be made aware of the
definition of misconduct set out in Section 2 -406 of this title, and
the claimant shall affirmatively certify that the answers given to
all questions in the initial claim process are true and correct to
the best of the claimant's knowledge and that no information has
been intentionally withheld or misrepresented in an attempt by the
claimant to receive benefits to which he or she the claimant is not
entitled.
2. The certification statement required in paragraph 1 of this
subsection shall be available through the Internet Claims service
provided by the Commission and by a form to be compl eted by the
claimant in a local office of the Commission or at any alternate
site designated by the Commission to take unemployment benefit
claims.
C. With respect to each week, he or she the claimant must
provide the Commission with a true and correct s tatement of all
material facts relating to : his or her unemployment; ability to
work; availability for work; activities or conditions which could
restrict the individual from seeking or immediately accepting full -
time employment or part -time work if subsection 4 (4) of Section 2-
408 of this title applies; applications for or receipt of workers'
compensation benefits; employment and earnings; and the reporting of
other income from retirement, pension, disability, self -employment,
education or training allowa nces.
ENR. S. B. NO. 794 Page 21
D. No claim will be allowed or paid unless the claimant resides
within a state or foreign country with which the State of Oklahoma
has entered into a reciprocal or cooperative arrangement pursuant to
Part 7 of Article IV of the Employment Security Act of 1980.
E. The Commission may require the individual to produce
documents or information relevant to the claim for benefits. If the
individual fails to produce it, the individual's claim for
unemployment benefits may be disqualified indefinitely by the
Commission until the information is produced. An individual that
has been disqualified indefinitely by the provisions of this
subsection may receive payment for any week between the initial
failure and the compliance with this subsection if the claim ant is
otherwise eligible and has made a timely filing for each intervening
week.
SECTION 4. AMENDATORY 40 O.S. 2011, Section 2 -209, as
last amended by Section 2, Chapter 14, O.S.L. 2018 (40 O.S. Supp.
2020, Section 2-209), is amended to read as follows:
Section 2-209. BENEFITS FOR EMPLOYEES OF GOVERNMENTAL OR
NONPROFIT EMPLOYERS.
Benefits based on service in employment defined in paragraph (3)
or (4) of Section 1-210 of this title, including any federally
operated educational institutions, shall be payable in the same
amount, on the same terms and subject to the same conditions as
benefits payable on the basis of other service subject to the
Employment Security Act of 1980, except that:
(1) With respect to service performed i n an instructional,
research or principal administrative capacity for an educational
institution, benefits shall not be paid based on services for any
week of unemployment commencing during the period between two (2)
successive academic years, or during a similar period between two
regular but not successive terms, or during a period of paid
sabbatical leave provided for in the individual's contract, to any
individual if the individual performs services in the first academic
year or term and if there is a c ontract or a reasonable assurance
that the individual will perform services in any such capacity for
any educational institution in the second academic year or term;
ENR. S. B. NO. 794 Page 22
(2) With respect to services performed in any other capacity
for an educational institut ion, benefits shall not be paid on the
basis of services to any individual for any week which commences
during a period between two (2) successive academic years or terms
if the individual performs services in the first academic year or
term and there is a reasonable assurance that the individual will
perform services in any such capacity in the second academic year or
term, except that if compensation is denied to any individual
pursuant to this paragraph and the individual was not offered an
opportunity to perform services for the educational institution for
the second academic year or term, the individual shall be entitled
to a retroactive payment of compensation for each week for which the
individual filed a timely claim for compensation and for which
compensation was denied solely by reason of this clause;
(3) With respect to any services described in paragraphs (1)
and (2) of this section, benefits shall not be payable on the basis
of services in any capacities to any individual for any week which
commences during an established and customary vacation period or
holiday recess if the individual performs services in the period
immediately before the vacation period or holiday recess, and there
is a reasonable assurance that the individual will perform se rvices
in any such capacity in the period immediately following the
vacation period or holiday recess;
(4) With respect to any services described in paragraphs (1)
and (2) of this section, benefits shall not be payable on the basis
of services in any cap acities as specified in paragraphs (1), (2)
and (3) of this section to any individual who performed services in
an educational institution while in the employ of an educational
service agency. For purposes of this paragraph, the term
"educational service agency" means a governmental agency or
governmental entity which is established and operated exclusively
for the purpose of providing services to one or more educational
institutions; and
(5) If services are provided to or on behalf of an educational
institution by a private for-profit entity or an entity described in
paragraph (3) or (4) of Section 1 -210 of this title that is not an
educational institution or an educational service agency, the
employees providing these services shall not be subject to th e terms
ENR. S. B. NO. 794 Page 23
and conditions as described in paragraphs (1), (2), (3) and (4) of
this section; and
(6) If an individual has employment with an educational
institution and has employment with a noneducational employer or
employers during the base period of the individual's benefit year,
the individual may become eligible for benefits during the between -
term denial period, based only on the noneducational employment.
SECTION 5. AMENDATORY 40 O.S. 2011, Section 2 -406, as
last amended by Section 3, Chapter 220, O.S.L. 2014 (40 O.S. Supp.
2020, Section 2-406), is amended to read as follows:
Section 2-406. DISCHARGE FOR MISCONDUCT.
A. An individual shall be disqualified for benefits if he or
she the individual has been discharged for mis conduct connected with
his or her the individual's last work. If discharged for
misconduct, the employer shall have the burden to prove that the
employee engaged in misconduct as defined by this section. Such
burden of proof is satisfied by the employer, or its designated
representative, providing a signed affidavit, or presenting such
other evidence which properly demonstrates the misconduct which
resulted in the discharge. Once this burden is met, the burden then
shifts to the discharged employee to pr ove that the facts are
inaccurate or that the facts as stated do not constitute misconduct
as defined by this section. Disqualification under this section
shall continue for the full period of unemployment next ensuing
after he or she the employee has been discharged for misconduct
connected with his or her the employee's work and until such
individual has become reemployed and has earned wages equal to or in
excess of ten (10) times the weekly benefit amount.
B. Acts which constitute misconduct under th is section shall be
limited to the following:
1. Any intentional act or omission by an employee which
constitutes a material or substantial breech breach of the
employee's job duties or responsibilities or obligations pursuant to
his or her the employee's employment or contract of employment;
2. Unapproved or excessive absenteeism or tardiness;
ENR. S. B. NO. 794 Page 24
3. Indifference to, breach of , or neglect of the duties
required which result in a material or substantial breach of the
employee’s job duties or responsibilit ies;
4. Actions Acts or omissions that place in jeopardy the health,
life, or property of self or others;
5. Dishonesty;
6. Wrongdoing;
7. Violation of a law; or
8. A violation of a policy or rule enacted to ensure orderly
and proper job performa nce or for the safety of self or others.
C. Any misconduct violation as defined in subsection B of this
section shall not require a prior warning from the employer. As
long as the employee knew, or should have reasonably known, that a
rule or policy of the employer was violated, the employee s hall not
be eligible for benefits.
D. Any finding by a state or federal agency of any failure by
the employee to meet the applicable civil, criminal or professional
standards of the employee's profession shall cre ate a rebuttable
presumption of such misco nduct, and benefits shall be denied, unless
the employee can show, with clear and convincing evidence, that such
misconduct did not occur, or the Commission determines that such
failure did not constitute misconduc t as defined herein.
SECTION 6. AMENDATORY Section 1, Chapter 338, O.S.L.
2016 (40 O.S. Supp. 2020, Section 2 -422), is amended to read as
follows:
Section 2-422. A. Unemployment benefits based on services by a
seasonal worker performed in seasonal employment are payable only
for weeks of unemployment that occur during the normal seasonal work
period. Benefits shall not be paid based on services performed in
seasonal employment for any week of unemployment that begins during
the period between two (2) successive normal s easonal work periods
to any individual if that individual performs the service in the
ENR. S. B. NO. 794 Page 25
first of the normal seasonal work periods and if there is a
reasonable assurance that the individual will perform the service
for a seasonal employer in the second of the normal seasonal work
periods. The notice of reasonable assurance shall be given by the
employer to the employee in writing on or before the last day of
work in the season. If benefits are denied to an individu al for any
week solely as a result of this s ection and the individual is not
offered an opportunity to perform in the second normal seasonal work
period for which reasonable assurance of employment had been given,
the individual is entitled to a retroactiv e payment of benefits
under this section for each week that the individual previously
filed a timely claim for benefits. An individual may apply for any
retroactive benefits under this section in accordance with the
provisions of Article 2 of the Employme nt Security Act of 1980.
B. If an individual has been employed by a nonseasonal employer
during the base period of the individual's benefit year, the
individual may become eligible for benefits during that between -
season denial period based only on the w ages of the nonseasonal
employment.
C. Not less than twenty (20) days before the estimated
beginning date of a normal seasonal work period, an employer may
apply to the Commission in writing for designation as a seasonal
employer. At the time of applica tion, the employer shall
conspicuously display a copy of the application on the employer's
premises. Within ninety (90) days after receipt of the application,
the Commission shall determine if the employer is a seasonal
employer. The employer may appeal this decision pursuant to the
provisions of Section 3-115 of Title 40 of the Oklahoma Statutes
this title. A determination of the Commission concerning the status
of an employer as a seasonal employer, or the decision of the
Assessment Board or a court of this state through the administrative
appeal process, which has become final, may be introduced in any
proceeding involving a claim for benefits, and the facts found and
decision issued in the determination or decision shall be conclusive
unless substantial evidence to the contrary is introduced by o r on
behalf of the claimant.
C. D. If the employer is determined to be a seasonal employer,
the employer shall give notice to each employee of the employer's
status as a seasonal employer and the beginning an d ending dates of
ENR. S. B. NO. 794 Page 26
the employer's normal seasona l work periods, and this notice shall
be given to the employee within the first seven (7) days of
employment. On or before the last day of work in the season, if the
employer intends to issue a notice of reas onable assurance of
employment for the next sea son, the employer shall also give notice
to each employee advising that the employee shall timely file an
initial application for unemployment benefits at the end of the
current seasonal work period and file t imely weekly continued claims
thereafter to preserve his or her the employee's right to receive
retroactive unemployment benefits if he or she such employee is not
reemployed by the seasonal employer in the subsequent normal
seasonal work period. The notices notice must be on a separate
document written in clear and concise language that states these
provisions. Failure of the employer to give adequate notice as
required by this subsection will result in the termination of the
employer as a seasonal emplo yer under subsection D E of this section
and the allowance of any claim in which the claimant did not receive
the required notice.
D. E. The Commission may issue a determination terminating an
employer's status as a seasonal employer on the Commission's own
motion for good cause, or upon the written r equest of the employer.
The effective date of a termination determination under this
subsection shall be set by the Commission. A determination under
this subsection may be appealed pursuant to the provisio ns of
Section 3-115 of Title 40 of the Oklahoma Statutes this title.
E. F. An employer whose status as a seasonal employer is
terminated under subsection D E of this section shall not reapply
for a seasonal employer status determination until after a reg ularly
recurring normal seasonal work period has begun and ended.
F. G. If a seasonal employer informs an employee who received
assurance of being rehired that, despite the assurance, the employee
will not be rehired at the beginning of the employer's ne xt normal
seasonal work period, this section does not prevent the employee
from receiving unemployment benefits in the same manner and to the
same extent he or she would receive benefits under the Employment
Security Act of 1980 from an employer who has no t been determined to
be a seasonal employer.
ENR. S. B. NO. 794 Page 27
G. H. A successor of a seasonal employer is considered to be a
seasonal employer unless the successor provides the Commission,
within one hundred twenty (120) days after the transfer, with a
written request for termination of its status as a seasonal employer
in accordance with subsection D E of this section.
H. I. At the time an employee is hired by a seasonal employer,
the employer shall notify the employee in writing if the employee
will be a seasonal work er. The employer shall provide the worker
with written notice of any subsequent change in the employee's
status as a seasonal worker. If an employee of a seasonal employer
is denied benefits because that employee is a seasonal worker, the
employee may contest that designation by filing an appeal pursuant
to the provisions of Part 6 of Article 2 of the Employment Security
Act of 1980.
I. J. As used in this section:
1. "Construction industry" means the work activity designated
in Sector Group 23 – Construction of the North American Industrial
Classification System (NAICS) published by the Executive Office of
the President, Office of Management and Budget, 2012 2017 edition;
2. "Normal seasonal work period" means that period, or those
periods, of time during which an individual is employed in seasonal
employment, as determined by the Commission ;
3. "Seasonal employment" means the employment of one or more
individuals primarily hired to perform services during regularly
recurring periods of twenty -six (26) weeks or less in any fifty-two-
week period other tha n services in the construction industry;
4. "Seasonal employer" means an employer, other than an
employer in the construction industry, who applies to the Commission
for designation as a seasonal em ployer and whom the Commission
determines to be an employ er whose operations and business require
employees engaged in seasonal employment; and
5. "Seasonal worker" means a worker who has been paid wages by
a seasonal employer for work performed only dur ing the normal
seasonal work period.
ENR. S. B. NO. 794 Page 28
SECTION 7. AMENDATORY 40 O.S. 2011, Section 2 -503, as
last amended by Section 5, Chapter 251, O.S.L. 2019 (40 O.S. Supp.
2020, Section 2-503), is amended to read as follows:
Section 2-503. CLAIMS, NOTICES AND OBJECTIONS.
A. Claims for benefits shall b e made in accordance with all
rules that the Oklahoma Employment Security Commission may
prescribe.
B. Promptly after an initial claim or an additional initial
claim is filed, the Commission sh all give written notice of the
claim to the last employer of t he claimant for whom he or she the
claimant worked at least fifteen (15) working days. The required
fifteen (15) working days are not required to be consecutive.
Provided, that promptly after the Commission is notified of the
claimant's separation from a n employment obtained by a claimant
during a continued claim series, the Commission shall give written
notice of the claim to the last separating employer. Notices to
separating employers durin g a continued claim series will be given
to the last employer in the claim week without regard to length of
employment. Each notice shall contain an admonition that failure to
respond to the notice could affect the employer's tax rate.
C. Promptly after the claim is paid for the fifth week of
benefits the Commissio n shall give written notice of the claim to
all other employers of the claimant during the claimant's base
period. The notice will be given pursuant to Section 3 -106 of this
title.
D. Notices shall be deemed to have been given when the
Commission deposits the same in the United States mail addressed to
the employer's last-known address. Notice shall be presumed prima
facie to have been given to the employer to whom addressed on the
date stated in the written notice at the last-known address and by
the date of the postmark on the envelope in which the notice was
sent. If the employer has elected to be notified by electronic
means according to procedures set out in Oklahoma Employment
Security Commission rules, notice shall be deemed to be given when
the Commission transmits the notification notice by electronic
means.
ENR. S. B. NO. 794 Page 29
E. Within ten (10) days after the date on the notice or the
date of the postmark on the envelope in which the notice was sent ,
whichever is later, an employer may file with the Commission at the
address prescribed in the notice written objections to the claim
setting forth specifically the facts which:
1. Make the claimant ineligible for benefits under Sections 2 -
201 through 2-210 of this title;
2. Disqualify the claimant from benefits unde r Sections 2-401
through 2-417 and 2-419 of this title; or
3. Relieve such employer from being charged for the benefits
wages of such claimant.
F. An untimely employer objection to a cl aim for unemployment
benefits made pursuant to subsection E of this s ection may be
allowed for good cause shown.
SECTION 8. AMENDATORY 40 O.S. 2011, Section 2 -610, is
amended to read as follows:
Section 2-610. JUDICIAL REVIEW.
A. Within the thirty (30) days after the day a notice of
decision of the Board of Review is mailed to the parties, the
Oklahoma Employment Security Commission, or any party to the
proceedings before the Board of Review, may obtain judicial review
by filing in the district court of the county in which the claimant
resides, or if the claimant is not a resident of the State of
Oklahoma then in the District Court of Oklahoma County, a petition
for review of the decision of the Board of Review. The petition for
review shall set out the names of all codefendants in the style of
the case, which shall include:
1. The Board of Review;
2. The Oklahoma Employment Security Commission; and
3. All other parties to the proceeding before the Board of
Review.
ENR. S. B. NO. 794 Page 30
The petition for review need not be verified but shall state
specifically the groun ds upon which the review is sought. A copy of
the petition for review shall be served upon the Board of Review at
its official address and the petitioner shall also deliver to the
Board of Review as many copies of the petition as there are
defendants. The Board of Review shall send issue to each party to
the proceeding a copy of the petition by mail, and the mailing
issuance shall be deemed to be service upon all the parties. In any
proceeding under this section the findings of the Board of Review as
to the facts, if supported by evidence, shall be conclusive and the
jurisdiction of the court shall be confined to questions of law. No
additional evidence shall be received by the c ourt, but the court
may remand the case and order additional evidence to be taken by the
Appeal Tribunal of the Oklahoma Employment Security Commission.
B. Within sixty (60) days of the date of service of the
petition on the Board of Review, the Board of Review shall file with
the court a certified copy of the record of the case, including all
documents and papers properly admitted into evidence and a
transcript of all testimony taken in the matter, together with the
Board of Review's findings, conclusion s, and decision.
C. The proceedings shall be heard in a summary manner and s hall
be given precedence over all other civil cases. An appeal may be
taken from the decision of the district court to the Supreme Court
of this state in the same manner as is p rovided in other civil
cases. It shall not be necessary as a condition preced ent to
judicial review of any decision of the Board of Review to enter
exceptions to the rulings of the Board, and no bond shall be
required as a condition of initiating a procee ding for judicial
review or entering an appeal from the decision of the court. Upon
the final termination of the judicial proceeding, the Board of
Review shall enter an order in accordance with the mandate of the
district or appellate court.
SECTION 9. AMENDATORY 40 O.S. 2011, Section 2 -616, as
amended by Section 7, Chapter 71, O.S.L. 2013 (40 O.S. Supp. 2020,
Section 2-616), is amended to read as follows:
Section 2-616. NOTICE OF OVERPAYMENT DETERMINATION.
ENR. S. B. NO. 794 Page 31
A. If the Oklahoma Employment Security Commission or its
representative determines that an individu al has been overpaid
unemployment benefits pursuant to Section 2 -613 of this title for
fraud overpayment or claimant error overpayment , the individual
shall be sent a notice of overpayment determination. If the
individual disagrees with this determination , the individual may
file an appeal of the determination with the Appeal Tribunal within
twenty (20) days after the date of the mailing of the notice to the
individual's last-known address or, if the notice is not mailed,
within twenty (20) days after the date of the delivery of the
notice. If the individual fails to appeal the determination within
the time provided, without good cause, then the determination will
be deemed final and no further appeal shall be allowed.
B. If the Oklahoma Employment Securi ty Commission or its
representative determines that an individual has been overpaid
unemployment benefits pursuant to paragraph 3 of Section 2 -613 of
this title relating to adm inistrative overpayment, the individual
shall be sent a notice of overpayment de termination. If the
individual disagrees with this determination, the individual may
file an appeal of the determination with the Appeal Tribunal within
ten (10) days after th e date of mailing of the notice to the
individual's last-known address or, if th e notice is not mailed,
within ten (10) days after the date of the delivery of the notice.
If the individual fails to appeal the determination within the time
provided, without good cause, the determination will be deemed final
and no further appeal shall be allowed.
SECTION 10. AMENDATORY 40 O.S. 2011, Section 2 -801, as
amended by Section 9, Chapter 14, O.S.L. 2018 (40 O.S. Supp. 2020,
Section 2-801), is amended to read as follows:
Section 2-801. CHILD SUPPORT OBLIGATIONS.
A. Beginning October 1, 1982, any individual filing a new claim
for unemployment compensation shall, at the time of filing such
claim, disclose whether or not the individual owes c hild support
obligations. If any such individual discloses that he or she owes
child support obligations, and is determined to be eligible for
unemployment compensation, the Commission shall notify the state or
local child support enforcement agency enfor cing such obligation
that the individual has been determined to be eligible for
ENR. S. B. NO. 794 Page 32
unemployment compensation The Commission may enter into an agreement
with the Department of Human Services for information required
pursuant to Section 240.12 of Title 56 of th e Oklahoma Statutes to
identify persons that owe child support obligations .
B. The Commission shall deduct and withhold from any
unemployment compensation payable to an individual that owes child
support obligations:
(1) the amount specified by the ind ividual to the Commission to
be deducted and withheld under this subsection, if neith er
paragraphs (2) or (3) of this subsection are applicable, or
(2) the amount, if any, determined by the Department of Human
Services pursuant to an agreement submitted to the Commission under
42 U.S.C., Section 654(19)(B)(i) by the state or local child support
enforcement agency, unless paragraph (3) of this subsection is
applicable, or
(3) any amount otherwise required to be so deducted and
withheld from such unemploy ment compensation pursuant to legal
process, which shall mean any writ, order, summons or other similar
process in the nature of garnishment, which:
(a) is issued by:
(i) a court of competent jurisdiction within any
state, territory or possession of the United
States,
(ii) a court of competent jurisdiction in any foreign
country with which t he United States has entered
into an agreement which requires the United
States to honor such process, or
(iii) an authorized official pursuant to an order of
such a court of competent jurisdiction or
pursuant to state or local law, and
(b) is directed to, and the purpose of which is to compel,
a governmental entity, which holds monies which are
otherwise payable to an individual, to make a payment
ENR. S. B. NO. 794 Page 33
from such monies to another party in order to satisfy
a legal obligation of such individual to provide child
support.
C. All income withholding orders or other legal process issued
to collect child support through a deduction from unemployment
benefits and all other docum ents necessary to complete the deduction
shall be served on the appropriate state or local ch ild support
enforcement agency and on the Oklahoma Employment Security
Commission.
D. Any amount deducted and withheld under subsection B of this
section shall be paid by the Commission to the appropriate state or
local child support enforcement agency Centralized Support Registry
pursuant to Section 413 of Title 43 of the Oklahoma Statutes .
E. D. Any amount deducted and withheld under subsection B of
this section shall for all purposes be treated as if it were paid to
the individual as unemployment compe nsation and paid by such
individual to the state or local child support enforcement agency in
satisfaction of the individual's child support obligations.
F. E. For purposes of subsections A through E D of this
section, the term "unemployment compensation" means any compensation
payable under the Employment Security Act of 1980, Section 1 -101 of
this title, including amounts payable by the Commission pursuant to
an agreement under any federal law providing for compensation,
assistance or allowances with res pect to unemployment.
G. F. This section applies only if appropriate arrangements
have been made for reimbursement by the state or local child support
enforcement agency for the administrative costs, as determined by
the Commission, incurred by the Commis sion under this section which
are attributable to child support obligations being enforced by the
state or local child support enforcement agency.
H. G. For purposes of this section:
(1) "Child support obligations" means only obligations which
are being enforced pursuant to a plan described in 42 U.S.C.,
Section 654, which has been approved by the Secretary of Health and
Human Services under 42 U.S.C., Secti on 651 et seq.
ENR. S. B. NO. 794 Page 34
(2) "State or local child support enforcement agency" means any
agency of a state or a political subdivision thereof, the Oklahoma
Department of Human Services, which pursuant to Section 237 of Title
56 of the Oklahoma Statutes is the sing le state agency in Oklahoma
operating pursuant to a plan described in 42 U.S.C., Section 654,
which has been approved by the Secretary of Health and Human
Services under 42 U.S.C., Section 651 et seq.
(3) Deductions from unemployment insurance authorized by
subsection B of this section in satisfaction of child support
obligations are only those obligati ons defined in paragraph (1) of
this subsection, and the recipient of said the deductions shall be
defined as only a state or local child support enforceme nt agency
operating pursuant to an approved plan described in 42 U.S.C.,
Section 654 and referenced i n paragraph (2) of this subsection.
SECTION 11. AMENDATORY 40 O.S. 2011, Section 3 -106.1, is
amended to read as follows:
Section 3-106.1 RELIEF FROM BENEFIT WAGES CHARGED - ADDENDUM.
A. For purposes of this section, "pandemic" mean s a health
state of emergency declared by the Governor.
B. The benefit wages charged to an employer for a given
calendar year shall be the total of th e benefit wages stated in the
notices given to the employer by the Commission. Provided , that on
and after April 19, 1995, an employer's benefit wages shall not
include wages paid by the employer to any employee who was separated
from his or her employment as a direct result of a natural disaster,
pandemic, fire, flood, or explosion that causes employees to be
separated from one employer's employment. The Commission shall
adopt emergency rules for immediate implementation of this section
and subsequently adopt permanent rules for review by the 1996
Legislature.
SECTION 12. AMENDATORY 40 O.S. 2011, Section 3 -307, is
amended to read as follows:
Section 3-307. A. All remittance , under Section 1-101 et seq.
of this title, shall be made payable to the Oklahoma Employment
ENR. S. B. NO. 794 Page 35
Security Commission, at Oklahoma City, Oklahoma, by bank automatic
clearinghouse (ACH) debit/credit, financial institution, draft,
check, cashier's check, electronic fund transfer, credit card, money
order, or money, and the Commission shall issue its receipt, for
cash or money payment, to the payor. No remittance other than cash
shall be in final discharge of liability due the Commission unless
and until it shall have been paid in cash. All monies collected
shall be deposited with the State Treasurer. There shall be
assessed, in addition to any other penalties provide d for by law, an
administrative service fee of Twenty -five Dollars ($25.00) on each
check returned to the Commission or any agent thereof by reason o f
the refusal of the bank financial institution upon which such check
was drawn to honor the same. There s hall be assessed, in addition
to any other penalties provided for by law, an administrative
service fee of Twenty -five Dollars ($25.00) on each elect ronic fund
transfer that fails due to insufficient funds in the payor's
account.
B. Upon the return of any check by reason of the refusal of the
bank financial institution upon which such check was drawn to honor
the same, the Commission may file a bogus check complaint with the
appropriate district attorney who shall refer the complaint to the
Bogus Check Restitution Program established by Section 111 of Title
22 of the Oklahoma Statutes. Funds collected through the program
after collection of the fee a uthorized by Section 114 of Title 22 of
the Oklahoma Statutes for deposit in the Bogus Check Restitution
Program Fund in the county treasury shall be transmitted to the
Commission and credited to the liability for which the returned
check was drawn and to along with the administrative service fee
provided by this section.
SECTION 13. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3 -311 of Title 40, unless there
is created a duplication in numbering, r eads as follows:
FORFEITURE OF TERMINATED EMPLOYER UNEMPLOYMENT TAX ACCOUNT
OVERPAYMENTS.
A. It is the fiduciary duty of the Oklahoma Employment Security
Commission to return overpayments received in the employer's
unemployment tax account . Upon the termination of the employer’s
unemployment tax account, the Commission will issue a refund of any
ENR. S. B. NO. 794 Page 36
remaining credit balance by mailing it to the last address provided
by the employer. If an employer's unemployment tax account has been
terminated and has a cr edit balance that has been at that level for
a period of one hundred eighty (180) days or more without a refund
being requested from the employer, the Commission will reduce the
balance of that unemployment tax account to zero (0) and consider
the credit to be forfeited after the Commission has exercised its
fiduciary duty.
B. Once the Commission has completed its fiduciary duty in
facilitating the return of the credit to the employer, based upon
the most current mailing address provided by the employer, the
Commission can assume its fiduciary duty is completed. If the
refund of the overpayment is returned to the Commission, the
employer shall consider the funds forfeited and will be prohibited
from requesting the credit balance in the future. All return s of
overpayment shall be returned to the clearing account as set forth
in Section 3-604 of Title 40 of the Okla homa Statutes.
SECTION 14. AMENDATORY 40 O.S. 2011, Section 4 -108, is
amended to read as follows:
Section 4-108. EXECUTIVE DIRECTOR.
A. The chief executive officer of the Commission shall be the
Executive Director who shall be ap pointed by and serve at the
pleasure of the Commission. The Executive Director shall have such
compensation and further duties as the Commis sion may establish.
The Executive Director may appoint in the unclassified service a
Deputy Director and an Associ ate Director hire, promote and
terminate personnel, and shall fix the qualifications and duties of
such position. The Executive Director may also appoint in the
unclassified service secretaries to the Executive Director, Deputy
Director, and Associate Dir ector personnel.
B. If a person has acquired grade, rank and career status under
the merit system of personnel administration within the Ok lahoma
Employment Security Commission before being appointed as Executive
Director, Deputy Director, Associate Direc tor, or unclassified
secretary, that person shall:
ENR. S. B. NO. 794 Page 37
1. Upon termination from the unclassified position, have the
right to be reinstated to the position within the Oklahoma
Employment Security Commission which was held prior to such
appointment, or to an eq uivalent position, unless the person was
terminated for a reason that would justify termination of a
classified employee or disqualify the person for reinstatement under
the Oklahoma Personnel Act or the rules implementing it; and
2. Be entitled during th e unclassified appointment to continue
to participate without interruption in any fringe benefit programs
available to career employees in cluding, but not limited to,
retirement and insurance programs.
SECTION 15. AMENDATORY 40 O.S. 2011, Section 4-311, is
amended to read as follows:
Section 4-311. COMMISSION SHALL PUBLISH RULES.
The Oklahoma Employment Security Co mmission shall cause to be
printed for distribution to the public the text of this act Section
1-101 et seq. of this titl e, the Commission's rules, its annual
reports to the Governor , and any other material the Commission deems
relevant and suitable and shall furnish the same to any person upon
application therefor to be published on the Commission website in a
manner that can be accessed by the general public .
SECTION 16. AMENDATORY 40 O.S. 2011, Section 4 -312, as
amended by Section 130, Chapter 304, O.S.L. 2012 (40 O.S. Supp.
2020, Section 4-312), is amended to read as follows:
Section 4-312. PERSONNEL AND COMPENSATION.
Subject to other provisions of this act Section 1-101 et seq. of
this title, the Oklahoma Employment Security Commission is
authorized to appoint, fix the compensation and prescribe the duties
and powers of such officers, accountants , attorneys, experts , and
other persons as may be necessary in the performance of its duties
under this act Section 1-101 et seq. of this title. The Commission
may delegate to any such persons such power and authority as it
deems reasonable and proper for the effective administration of this
act, and may in its discretion bond any person handling moneys or
signing checks hereunder. The Commission is authorized and directed
ENR. S. B. NO. 794 Page 38
to maintain the existing merit system covering all persons employed
in the administration of this act and shall have authority, by rule,
to provide for all matters which are appropriate to the
establishment and main tenance of such a merit system on the basis of
efficiency and fitness. The Commission is authorized to adopt such
rules as may be necessary to meet personnel standards promulgated by
the Office of Management and Enterprise Services pursuant to the
Social Security Act, as amended, and the Act of Congress entitled
"An Act to provide for the establishment of a national employment
system, and for other purposes", approved June 6, 1933, as amended ,
and to provide for the maintenance of the merit system required
under this section in conjunction with any merit system applicable
to any other state agency or agencies which meets the pe rsonnel
standards promulgated by the Office of Management and Enterprise
Services.
SECTION 17. AMENDATORY 40 O.S. 2011, Section 4-508, as
last amended by Section 10, Chapter 251, O.S.L. 2019 (40 O.S. Supp.
2020, Section 4-508), is amended to read as follows:
Section 4-508. INFORMATION TO BE KEPT CONFIDENTIAL -
DISCLOSURE.
A. Except as otherwise provided by law, information obtained
from any employing unit or individual pursuant to the administration
of the Employment Security Act of 1980, any workforce system program
administered or monitored by the Oklahoma Employment Security
Commission, and determination s as to the benefit rights of any
individual shall be kept confidential and shall not be disclosed or
be open to public inspect ion in any manner revealing the
individual's or employing unit's identity. Any claimant , or
employer, or agent of either as auth orized in writing, shall be
supplied with information from the records of the Oklahoma
Employment Security Commission, to the e xtent necessary for the
proper presentation of the claim or complaint in any proceeding
under the Employment Security Act of 1980 , with respect thereto.
B. Upon receipt of written request by any employer who
maintains a Supplemental Unemployment Benefit ( SUB) Plan, the
Commission or its designated representative may release to that
employer information regarding weekly benefit amo unts paid its
workers during a specified temporary layoff period, provided the
ENR. S. B. NO. 794 Page 39
Supplemental Unemployment Benefit (SUB) Plan requ ires benefit
payment information before Supplemental Unemployment Benefits can be
paid to the workers. Any information disclose d under this provision
shall be utilized solely for the purpose outlined herein and shall
be held strictly confidential by the e mployer.
C. The provisions of this section shall not prevent the
Commission from disclosing the following information and no
liability whatsoever, civil or criminal, shall attach to any member
of the Commission or any employee thereof for any error or omi ssion
in the disclosure of this information:
1. The delivery to taxpayer or claimant a copy of any report or
other paper filed by the taxpayer or claimant pursuant to the
Employment Security Act of 1980;
2. The disclosure of information to any person for a purpose as
authorized by the taxpayer or claimant pursuant to a waiver of
confidentiality. The waiver shall be in writing and shall be
notarized;
3. The Oklahoma Department of Commerce may have access to data
obtained pursuant to the Employment Securi ty Act of 1980 pursuant to
rules promulgated by the Commission. The information obtained shall
be held confidential by the Department and any of its agents and
shall not be disclosed or be open to public inspection. The
Oklahoma Department of Commerce, h owever, may release aggregated
data, either by industry or county, provided that the aggregation
meets disclosure requiremen ts of the Commission;
4. The publication of statistics so classified as to prevent
the identification of a particular report and th e items thereof;
5. The disclosing of information or evidence to the Attorney
General or any district attorney when the i nformation or evidence is
to be used by the officials or other parties to the proceedings to
prosecute or defend allegations of violat ions of the Employment
Security Act of 1980. The information disclosed to the Attorney
General or any district attorney s hall be kept confidential by them
and not be disclosed except when presented to a court in a
prosecution of a violation of Section 1 -101 et seq. of this title,
ENR. S. B. NO. 794 Page 40
and a violation by the Attorney General or district attorney by
otherwise releasing the informat ion shall be a felony;
6. The furnishing, at the discretion of the Commission, of any
information disclosed by the records or files t o any official person
or body of this state, any other state or of the United States who
is concerned with the administra tion of assessment of any similar
tax in this state, any other state or the United States;
7. The furnishing of information to other s tate agencies for
the limited purpose of aiding in the collection of debts owed by
individuals to the requesting agencie s or the Oklahoma Employment
Security Commission;
8. The release of information to employees of the Oklahoma
Department of Transportati on or any Metropolitan Planning
Organization as defined in 23 U.S.C., Section 134 and 49 U.S.C.,
Section 5303 of inform ation required for use in federally mandated
regional transportation planning, which is performed as a part of
its official duties;
9. The release of information to employees of the Oklahoma
State Treasurer's office of information required to verify or
evaluate the effectiveness of the Oklahoma Small Business Linked
Deposit Program on job creation;
10. The release of information to employees of the Attorney
General, the Department of Labor, the Workers' Compensation
Commission, and the Insurance Departm ent for use in investigation of
workers' compensation fraud;
11. The release of information to employees of any Oklahoma
state, Oklahoma county, Oklahoma municipal or Oklahoma tribal law
enforcement agency for use in criminal investigations and the
location of missing persons or fugitives from justice;
12. The release of information to employees of the Center of
International Trade, Oklahom a State University, of information
required for the development of International Trade for employers
doing business in the State of Oklahoma;
ENR. S. B. NO. 794 Page 41
13. The release of information to employees of the Oklahoma
State Regents for Higher Education of information required for use
in the default prevention efforts and/or collection of defaulted
student loans guaranteed by the Okl ahoma Guaranteed Student Loan
Program. Any information disclosed under this provision shall be
utilized solely for the purpose outlined herei n and shall be held
strictly confidential by the Oklahoma State Regents for Higher
Education;
14. The release of information to employees of the Oklahoma
Department of Career and Technology Education, the Oklahoma State
Regents for Higher Education, the Center for Economic and Management
Research of the University of Oklahoma, the Center for Economic and
Business Development at Southwestern Oklahoma State University , or a
center of economic and business research or development at a
comprehensive or regiona l higher education institution within The
Oklahoma State System of Higher Education of information required to
identify economic trends or educational outcomes . The information
obtained shall be kept confidential by the Oklahoma Department of
Career and Technology Education, the Oklahoma State Regents for
Higher Education and the higher education institution and sha ll not
be disclosed or be open to public inspection. The Oklahoma
Department of Career and Technology Education, the Oklahoma State
Regents for Higher Education and the higher education institution
may release aggregated data, provided that the aggregatio n meets
disclosure requirements of the Commission;
15. The release of information to employees of the Office of
Management and Enterprise Serv ices of information required to
identify economic trends. The information obtained shall be kept
confidential by the Office of Management and Enterprise Services and
shall not be disclosed or be open to public inspection. The Office
of Management and Ent erprise Services may release aggregate data,
provided that the aggregation meets disclosure requirements of the
Oklahoma Employment Security Commission;
16. The release of information to employees of the Department
of Mental Health and Substance Abuse Ser vices of information
required to evaluate the effectiveness of mental health and
substance abuse treatment and state or local programs utilized to
divert persons from inpatient treatment. The information obtained
shall be kept confidential by the Departme nt and shall not be
ENR. S. B. NO. 794 Page 42
disclosed or be open to public inspection. The Department of Mental
Health and Substance A buse Services, however, may release aggregated
data, either by treatment facility, program or larger aggregate
units, provided that the aggregati on meets disclosure requirements
of the Oklahoma Employment Security Commission;
17. The release of information to employees of the Attorney
General, the Oklahoma State Bureau of Investigation , and the
Insurance Department for use in the investigation of insurance fraud
and health care fraud;
18. The release of information to employees of public housing
agencies for purposes of determining eligibility pursuant to 42
U.S.C., Section 503(i);
19. The release of wage and benefit claim information, at the
discretion of the Commission, to an agency of this state or its
political subdivisions that operate a program o r activity designated
as a required partner in the Workforce Innovation and Opportunity
Act One-Stop delivery system pursuant to 29 U.S.C.A., Sectio n
3151(b)(1), based on a showing of need made to the Commission and
after an agreement concerning the releas e of information is entered
into with the entity receiving the information . For the limited
purpose of completing performance accountability report s required by
the Workforce Innovation and Opportunity Act, only those designated
required partners that mee t the 20 CFR Section 603.2(d) definition
of public official may contract with a private agent or contractor
pursuant to 20 CFR Section 603.5(f) for the purpose of the private
agent or contractor receiving confidential unemployment compensation
information to the extent necessary to complete the performance
accountability reports ;
20. The release of information to the State Wage Interchange
System, at the discretion of the Commission;
21. The release of information to the Bureau of the Census of
the U.S. Department of Commerce for the purpose of economic and
statistical research;
22. The release of employer tax information and benefit claim
information to the Oklahoma Health Care Authority for use in
determining eligibility for a program that will provi de subsidies
ENR. S. B. NO. 794 Page 43
for health insurance premiums for qualified employers, employees,
self-employed persons, and unemployed persons;
23. The release of emplo yer tax information and benefit claim
information to the State Department of Rehabilitation Services for
use in assessing results and outcomes of clients served;
24. The release of information to any state or federal law
enforcement authority when necessa ry in the investigation of any
crime in which the Commission is a victim. Information that is
confidential under this section shall be held confidential by the
law enforcement authority unless and until it is required for use in
court in the prosecution o f a defendant in a criminal prosecution;
25. The release of information to vendors that contract with
the Oklahoma Employment Security Commission to provide for the
issuance of debit cards, to conduct electronic fund transfers, to
perform computer program ming operations, or to perform computer
maintenance or replacement operations; provided the vendor agr ees to
protect and safeguard the information it receives and to destroy the
information when no longer needed for the purposes set out in the
contract;
26. The release of information to employees of the Office of
Juvenile Affairs of information for use in assessing results and
outcomes of clients served as well as the effectiveness of state and
local juvenile and justice programs including prevention and
treatment programs. The information obtained shall be kept
confidential by the Office of Juvenile Aff airs and shall not be
disclosed or be open to public inspection. The Office of Juvenile
Affairs may release aggregated data for programs or larger aggrega te
units, provided that the aggregation meets disclosure requirements
of the Oklahoma Employment Secu rity Commission;
27. The release of information to vendors that contract with
the State of Oklahoma for the purpose of providing a public
electronic labor exchange system that will support the Oklahoma
Employment Security Commission's operation of an emp loyment service
system to connect employers with job seekers and military veterans.
This labor exchange system would enhance the stability and security
of Oklahoma's economy as well as support the provision of veterans'
priority of service. The vendors m ay perform computer programming
ENR. S. B. NO. 794 Page 44
operations, perform computer maintenance or replacement operations,
or host the electronic solution; provided each vendor ag rees to
protect and safeguard all information received, that no information
shall be disclosed to an y third party, that the use of the
information shall be restricted to the scope of the contract, and
that the vendor shall properly dispose of all informati on when no
longer needed for the purposes set out in the contract; or
28. The release of employer tax information and benefit claim
information to employees of a county public defender's office in the
State of Oklahoma and the Oklahoma Indigent Defense Sy stem for the
purpose of determining financial eligibility for the services
provided by such entitie s.
D. Subpoenas to compel disclosure of information made
confidential by this statute shall not be valid, except for
administrative subpoenas issued by fede ral, state, or local
governmental agencies that have been granted subpoena power by
statute or ordinance. Confidential information maintained by the
Commission can be obtained by order of a court of record that
authorizes the release of the records in wri ting. All
administrative subpoenas or court orders for production of documents
must provide a minimum of twenty (20) days from the date it is
served for the Commission to produce the documents. If the date on
which production of the documents is required is less than twenty
(20) days from the date of service, the subpoena or order shall be
considered void on its face as an undue burden or hardship on the
Commission. All administrative subpoenas, court orders or notarized
waivers of confidentiality author ized by paragraph 2 of subsection C
of this section shall be presented with a request for records within
ninety (90) days of the date the document is issued or signed, and
the document can only be used one time to obtain records.
E. Should any of the disc losures provided for in this section
require more than casual or incidental staff time, the Commi ssion
shall charge the cost of the staff time to the party requesting the
information.
F. It is further provided that the provisions of this section
shall be strictly interpreted and shall not be construed as
permitting the disclosure of any other inform ation contained in the
records and files of the Commission.
ENR. S. B. NO. 794 Page 45
SECTION 18. AMENDATORY 40 O.S. 2011, Section 5 -107, is
amended to read as f ollows:
Section 5-107. WRONGFUL DISCLOSURE OF INFORMATION.
If any employee or member of the Board of Review or the Oklahoma
Employment Security Commission or any employee of the Commission, in
violation of or any employee of a governmental unit, private
business or nonprofit entity that is allowed access to information
under Section 4-508 of this title, makes any disclosure of
confidential information obtained from any employing unit or
individual in the administration of this act or otherwise violates
Section 4-508 of this title, or if any person who has obtained any
list of applicants for work, or of claimants or recipients of
benefits, under this act Section 5-101 et seq. of this title shall
use or permit the use of such list for any political purpose, he
such individual shall be guilty of a misdemeanor and shall be
punished by a fine of not les s than Fifty Dollars ($50.00) nor more
than Five Hundred Dollars ($500.00), or imprisoned for not longer
than ninety (90) days, or both.
SECTION 19. This act shall become effective November 1, 2021.
ENR. S. B. NO. 794 Page 46
Passed the Senate the 29th day of April, 2021.
Presiding Officer of the Senate
Passed the House of Representatives the 13th day of April, 2021.
Presiding Officer of the House
of Representatives
OFFICE OF THE GOVERNOR
Received by the Office of the Governor this _______ _____________
day of ___________________, 20_______, at _______ o'clock _______ M.
By: _______________________________ __
Approved by the Governor of the State of Oklahoma this _____ ____
day of _________________ __, 20_______, at _______ o'clock _______ M.
_________________________________
Governor of the State of Oklahoma
OFFICE OF THE SECRETARY OF STATE
Received by the Office of the Secretary of State this _______ ___
day of __________________, 20 _______, at _______ o'clock _______ M.
By: __________________________ _______