WEST VIRGINIA LEGISLATURE

2024 REGULAR SESSION

Introduced

House Bill 5424

By Delegates Espinosa, Summers, Gearhart, Tully, Hite, Fehrenbacher, Foster, Linville, Martin, and Crouse

[Introduced February 02, 2024; Referred to the Committee on Finance]

A BILL to amend and reenact §21A-1A-28 of the Code of West Virginia, 1931, as amended; to amend and reenact §21A-2D-2 and §21A-2D-3 of said code; to amend said code by adding thereto a new section, designated §21A-2D-2a; to amend said code by adding thereto a new article, designated §21A-3-1, §21A-3-2, and §21A-3-3; to amend and reenact §21A-6-1 and §21A-6-10 of said code; and to amend said code by adding thereto a new section, designated §21A-6-1d, all relating to eligibility for and amount of unemployment benefits; modifying methodology for calculating maximum benefit rate; modifying benefit table consistent with adoption of indexing; requiring Workforce West Virginia Commissioner take certain actions to verify unemployment insurance claim program integrity; requiring commissioner to review suspicious or potentially improper claims under certain circumstances; defining "state average unemployment rate"; limiting the maximum duration of unemployment benefits based on the state average unemployment rate; requiring Workforce West Virginia to promulgate legislative rules; establishing an internal effective date; reducing maximum benefit for each wage class;  requiring work search activities to qualify for unemployment benefits; defining what constitutes work search activities; mandating submittal of proof of work search activities; providing for verification of work search activities; granting commissioner of Workforce West Virginia discretion in verification of work search activities; mandating establishment of process to refer individuals seeking unemployment benefits to job opportunities; requiring individuals receiving referrals to suitable work to apply for and accept that work; mandating employers to report refusal of offer of employment to commissioner; allowing individuals who accept part-time non-suitable employment to receive unemployment benefits without reduction for wages under certain circumstances; making certain individuals applying for or receiving unemployment benefits exempt from work search requirements; establishing process for notification of work search activity requirements; requiring rulemaking; and setting an internal effective date.

Be it enacted by the Legislature of West Virginia:

ARTICLE  1A. DEFINITIONS.

§21A-1A-28. Wages; average annual wage; threshold wage.

(a) "Wages" means all remuneration for personal service, including commissions, gratuities customarily received by an individual in the course of employment from persons other than the employing unit, as long as such gratuities equal or exceed an amount of not less than $20 each month and which are required to be reported to the employer by the employee, bonuses and the cash value of all remuneration in any medium other than cash except for agricultural labor and domestic service. The term "wages" includes remuneration for service rendered to the state as a member of the state National Guard or Air National Guard only when serving on a temporary basis pursuant to a call made by the Governor under sections one and two, article one-d, chapter fifteen of this code.

(b) The term "wages" does not include:

(1) That part of the remuneration which, after remuneration equal to $8,000 $10,000 or, after the amendment and reenactment of this section during the 2009 legislative session, the threshold wage is paid during a calendar year to an individual by an employer or his or her predecessor with respect to employment during any calendar year, is paid to such individual by such employer during such calendar year unless that part of the remuneration is subject to a tax under a federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund. For the purposes of this section, the term "employment" includes service constituting employment under any unemployment compensation law of another state; or which as a condition for full tax credit against the tax imposed by the federal Unemployment Tax Act is required to be covered under this chapter; and, except that for the purposes of sections one, ten, eleven and thirteen, article six of this chapter, all remuneration earned by an individual in employment shall be credited to the individual and included in his or her computation of base period wages: Provided, That the remuneration paid to an individual by an employer with respect to employment in another state or other states upon which contributions were required of and paid by such employer under an unemployment compensation law of such other state or states shall be included as a part of the remuneration equal to the amounts of $8,000 $10,000. or, after the amendment and reenactment of this section during the 2009 legislative session, the threshold wage herein referred to In applying such limitation on the amount of remuneration that is taxable, an employer shall be accorded the benefit of all or any portion of such amount which may have been paid by its predecessor or predecessors: Provided, however, That if the definition of the term "wages" as contained in Section 3306 (b) of the Internal Revenue Code of 1954, as amended, is amended to include remuneration in excess of $8,000 or, after the amendment and reenactment of this section during the 2009 legislative session, the threshold wage paid to an individual by an employer under the federal Unemployment Tax Act during any calendar year, wages for the purposes of this definition shall include remuneration paid in a calendar year to an individual by an employer subject to this chapter or his or her predecessor with respect to employment during any calendar year up to an amount equal to the amount of remuneration taxable under the federal Unemployment Tax Act;

(2) The amount of any payment made (including any amount paid by an employer for insurance or annuities, or into a fund, to provide for any such payment) to, or on behalf of, an individual in its employ or any of his or her dependents, under a plan or system established by an employer which makes provision for individuals in its employ generally (or for such individuals and their dependents), or for a class or classes of such individuals (or for a class or classes of such individuals and their dependents) on account of: (A) Retirement; or (B) sickness or accident disability payments made to an employee under an approved state workers' compensation law; or (C) medical or hospitalization expenses in connection with sickness or accident disability; or (D) death;

(3) Any payment made by an employer to an individual in its employ (including any amount paid by an employer for insurance or annuities, or into a fund, to provide for any such payment) on account of retirement;

(4) Any payment made by an employer on account of sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability to, or on behalf of, an individual in its employ after the expiration of six calendar months following the last calendar month in which such individual worked for such employer;

(5) Any payment made by an employer to, or on behalf of, an individual in its employ or his or her beneficiary: (A) From or to a trust described in Section 401(a) which is exempt from tax under Section 501(a) of the federal Internal Revenue Code at the time of such payments unless such payment is made to such individual as an employee of the trust as remuneration for services rendered by such individual and not as a beneficiary of the trust; or (B) under or to an annuity plan which, at the time of such payment, is a plan described in Section 403(a) of the federal Internal Revenue Code;

(6) The payment by an employer of the tax imposed upon an employer under Section 3101 of the federal Internal Revenue Code with respect to remuneration paid to an employee for domestic service in a private home or the employer of agricultural labor;

(7) Remuneration paid by an employer in any medium other than cash to an individual in its employ for service not in the course of the employer's trade or business;

(8) Any payment (other than vacation or sick pay) made by an employer to an individual in its employ after the month in which he or she attains the age of 65 if he or she did not work for the employer in the period for which such payment is made;

(9) Payments, not required under any contract of hire, made to an individual with respect to his or her period of training or service in the Armed Forces of the United States by an employer by which such individual was formerly employed; and

(10) Vacation pay, severance pay or savings plans received by an individual before or after becoming totally or partially unemployed but earned prior to becoming totally or partially unemployed: Provided, That the term totally or partially unemployed does not include: (A) Employees who are on vacation by reason of the request of the employees or their duly authorized agent, for a vacation at a specific time, and which request by the employees or their agent is acceded to by their employer; (B) employees who are on vacation by reason of the employer's request provided they are so informed at least ninety days prior to such vacation; or (C) employees who are on vacation by reason of the employer's request where such vacation is in addition to the regular vacation and the employer compensates such employee at a rate equal to or exceeding their regular daily rate of pay during the vacation period.

(c) The reasonable cash value of remuneration in any medium other than cash shall be estimated and determined in accordance with rules prescribed by the commissioner, except for remuneration other than cash for services performed in agricultural labor and domestic service.

(d) "Average annual wage" means the state's average annual wage which is computed on or before September 30 of the year immediately preceding the rate year and is the total remuneration paid by employers as reported on contribution reports on or before that date with respect to all employment during the four consecutive calendar quarters ending on June 30 of that year divided by the average monthly number of individuals performing services in employment during the same four calendar quarters as reported on the contribution reports.

"Threshold wage" means the wage amount the employer pays unemployment taxes on for each person in his or her employ during a calendar year. On and after the effective date of the amendment and reenactment of this chapter by the Legislature in 2009, the threshold wage will be $12,000: Provided, That when the moneys in the unemployment fund reach $220 million on February 15 of any year, the threshold wage thereafter will be reduced to $9,000: Provided, however, That each year thereafter the threshold wage shall increase or decrease by the same percentage that the state's average wage increases or decreases

ARTICLE 2D.  UNEMPLOYMENT INSURANCE PROGRAM INTEGRITY ACT.

§21A-2D-2. Unemployment insurance program integrity.

The commissioner shall, on a weekly basis, unless otherwise specified: be required to

(a) (1) Check the unemployment insurance rolls against the Division of Corrections and Rehabilitation's list of imprisoned individuals to verify eligibility for unemployment benefits and ensure program integrity;

(b) (2) Check new hire records against the National Directory of New Hires to verify eligibility for unemployment benefits; and

(c) (3) Check the unemployment insurance rolls against a commercially available database that provides cross-matching functions to verify eligibility for unemployment benefits;

(4) On a monthly basis, cross-check the unemployment insurance rolls against state death records; and

(5) Verify the identity of unemployment claimants by methods including, but not limited to, verifying the identity of an applicant prior to awarding benefits and requiring multi-factor authentication as part of online applications.

§21A-2D-2a. Automatic claim review.

The commissioner shall perform a full eligibility review of suspicious or potentially improper claims in cases including, but not limited to:

(1) Multiple or duplicative claims filed online originating from the same IP address;

(2) Claims filed online from foreign IP addresses;

(3) Multiple or duplicative claims filed that are associated with the same mailing address; and

(4) Multiple or duplicative claims filed that are associated with the same bank account.

§21A-2D-3. Data sharing.

The commissioner shall have the authority to may execute a memorandum of understanding exchange information with any department, agency, or division for information required to be shared between agencies outlined in this article as necessary to carry out the requirements of this article.

ARTICLE 3. Unemployment BENEFITS Indexing.

§21A-3-1. Duration of benefits; calculation.

(a) For the purposes of this article, "state average unemployment rate" means the average of the seasonally adjusted unemployment rates for the months comprising the previous quarter of the most recent calendar year as published by Workforce West Virginia.

(b) For all valid unemployment compensation claims submitted during a calendar year, the maximum duration of benefits will be as follows:

(1) If the state average unemployment rate is below 5.5 percent, the maximum duration of benefits will be limited to 14 weeks;

(2) If the state average unemployment rate is at or above 5.5 percent, but below 6.0 percent, the maximum duration of benefits will be limited to 15 weeks;

(3) If the state average unemployment rate is at or above 6.0 percent, but below 6.5 percent, the maximum duration of benefits will be limited to 16 weeks;

(4) If the state average unemployment rate is at or above 6.5 percent, but below 7.0 percent, the maximum duration of benefits will be limited to 17 weeks;

(5) If the state average unemployment rate is at or above 7.0 percent, but below 7.5 percent, the maximum duration of benefits will be limited to 18 weeks;

(6) If the state average unemployment rate is at or above 7.5 percent, but below 8.0 percent, the maximum duration of benefits will be limited to 19 weeks;

(7) If the state average unemployment rate is at or above 8.0 percent, but below 8.5 percent, the maximum duration of benefits will be limited to 20 weeks;

(8) If the state average unemployment rate is at or above 8.5 percent, but below 9.0 percent, the maximum duration of benefits will be limited to 21 weeks; and

(9) If the state average unemployment rate is at or above 9.0 percent, the maximum duration of benefits will be limited to 22 weeks.

§21A-3-2. Rulemaking.

Workforce West Virginia shall promulgate legislative rules to carry out the requirements of this article in accordance with §29A-3-1 et seq. of this code.

§21A-3-3. Effective date.

The provisions of this article shall take effect on January 1, 2025.

ARTICLE 6. EMPLOYEE ELIGIBILITY; BENEFITS.

§21A-6-1. Eligibility qualifications.

An unemployed individual shall be eligible to receive benefits only if the commissioner finds that:

(1) He or she has registered for work at and thereafter continues to report at an employment office in accordance with the regulations of the commissioner;

(2) He or she has made a claim for benefits in accordance with the provisions of article seven of this chapter §21A-7-1 et seq. of this code and has furnished his or her Social Security number, or numbers if he or she has more than one such number;

(3) He or she is able to work and is available for full-time work for which he or she is fitted by prior training or experience and is doing that which a reasonably prudent person in his or her circumstances would do in seeking work actively seeking work as defined in §21A-6-1d of this code;

(4) He or she has been totally or partially unemployed during his or her benefit year for a waiting period of one-week prior to the week for which he or she claims benefits for total or partial unemployment;

(5) He or she has within his or her base period been paid wages for employment equal to not less than $2,200 and must have earned wages in more than one quarter of his or her base period or, if he or she is not eligible under his or her base period, has within his or her alternative base period been paid wages for employment equal to not less than $2,200 and must have earned wages in more than one quarter of his or her alternative base period; and

(6) He or she participates in reemployment services as defined in §21A-6-1d of this code, such as job search assistance services, if the individual has been determined to be likely to exhaust regular benefits and needs reemployment services pursuant to a profiling system established by the commissioner, unless the commissioner determines that:

(A) The individual has completed such services; or

(B) There is justifiable cause for the claimant's failure to participate in such services.

§21A-6-1d. Jobs and Reemployment Act.

(a) In addition to compliance with all other eligibility requirements, an individual shall be eligible and shall remain eligible for unemployment benefits only if he or she actively seeks, and continues to seek, work by conducting at least four work search activities weekly, defined as:

(1) Registering for work with the state's labor exchange system, placement firm, temporary work agencies, or educational institution with job placement offices;

(2) Logging on and looking for work in the state's labor exchange or other online job matching system;

(3) Using reemployment services in job centers or completing similar online or self-service activities, including, but not limited to, obtaining and using labor market and career information, participating in Reemployment Services and Eligibility Assessment (RESEA) activities, participating in skills assessment for occupational matching, instructional workshops, or other specialized activities;

(4) Completing job applications for employers that have, or are reasonably expected to have, job openings, or following through on job referrals or job development attempts, as directed by Workforce West Virginia staff;

(5) Applying for or participating in employment and training services provided by partner programs in job centers;

(6) Participating in work-related networking events, such as job clubs, job fairs, industry association events, or networking groups;

(7) Making contacts with, or in-person visits to, employers that have, or are reasonably expected to have, job openings;

(8) Taking a civil service examination;

(9) Going on interviews with employers, either in-person or virtually; or

(10) Performing any other work search activities prescribed or allowed by rules promulgated by Workforce West Virginia.

(b) The commissioner shall:

(1) Require an individual, at the time of application for unemployment benefits and weekly thereafter, to provide proof of all his or her work search activities;

(2) Verify submissions of proof of work search activities by individuals applying for or receiving unemployment benefits; and

(3) Determine any individual who fails to perform work search activities or provide proof of work search activities as required by this section ineligible to receive unemployment benefits unless the individual can reasonably explain his or her failure to do so or timely remedy the failure to provide proof of his or her work search activity.

(c) The commissioner shall have discretion to determine the sufficiency of the proof of work search activities submitted, the explanation of a failure to submit such proof, the provision of such proof after an inaccuracy in the proof provided is identified, and whether an individual has otherwise complied with the requirements of this section.

(d) The commissioner shall, utilizing existing resources:

(1) Establish a process by which Workforce West Virginia will share open positions submitted to or posted by the Division of Personnel or any other state-administered job board by employers directly with individuals applying for or receiving unemployment benefits; and

(2) Establish a process by which, for the purpose of helping individuals applying for or receiving unemployment benefits secure suitable work, Workforce West Virginia shall refer individuals applying for or receiving unemployment benefits to such open positions, including facilitating contact between employers and those individuals and monitoring whether those individuals are sufficiently responsive to a referral.

(e) An individual applying for or receiving unemployment benefits who receives referrals from Workforce West Virginia to a job or jobs considered to be suitable, as that term is defined in this chapter, shall apply for that job or those jobs within one-week of receiving the referrals and accept employment in suitable work if offered.

(f) Employers shall report the refusal of any individual who is receiving unemployment benefits and who receives job referrals from Workforce West Virginia to accept an offer of employment to the commissioner. The report shall be made in writing in a manner prescribed by the commissioner and shall be signed by the employer. The report shall become part of the file of the individual's claim for benefits.

(g) Individuals receiving unemployment benefits who accept a referral to a part-time open position or otherwise accept part-time employment for which the wages are less than his or her weekly benefit rate shall continue to receive unemployment benefits without reduction for those wages for the duration of his or her benefits period.

(h) With the exception of individuals who have received or been served with a summons for jury duty or are serving on a jury in any court of this state, the United States, or any state of the United States; are receiving vocational training as described in the provisions of §21A-6-4 of this code; or who are members in good standing of a union that refers its members to employment from a union hall; all individuals applying for or receiving unemployment benefits shall be subject to the requirements of this section, including, but not limited to, individuals who are seasonally unemployed or laid off subject to recall by their employer.

(i) Workforce West Virginia shall notify individuals seeking benefits, at the time an initial claim is filed and at any other time during the benefit year that the requirements substantively change, of the obligation to actively seek work. Delivery of the notification shall be made by the method selected by the individual seeking benefits, and may include United States mail, email, online mailbox, or text message. The notification shall include, at a minimum, the types of work search activities that are acceptable; the number of work search activities that are required in any week; the requirement that work search activities be documented; and the requirement to apply, and accept if offered, suitable jobs referred by the agency.

(j) The commissioner shall promulgate rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code.

(k) The provisions of this section shall become effective January 1, 2024.

§21A-6-10. Benefit rate — Total unemployment; annual computation and publication of rates.

(a) Each eligible individual who is totally unemployed in any week shall be paid benefits with respect to that week at the weekly rate appearing in Column (C) in the benefit table in this section, on the line on which in Column (A) there is indicated the employee's wage class, except as otherwise provided under the term "total and partial unemployment" in §21A-1A-27 of this code.  However, such amount shall not be more than the maximum weekly benefit amount as defined in §21A-6-10(b) of this code. The employee's wage class shall be determined by his or her base period wages as shown in Column (B) in the benefit table. The right of an employee to receive benefits shall may not be prejudiced nor the amount thereof be diminished by reason of failure by an employer to pay either the wages earned by the employee or the contribution due on such wages. An individual who is totally unemployed but earns in excess of $60 as a result of odd job or subsidiary work, or is paid a bonus in any benefit week shall be paid benefits for such week in accordance with the provisions of this chapter pertaining to benefits for partial unemployment.

(b) (1) The maximum benefit for each wage class shall be equal to 26 times the weekly benefit rate.

(2) The maximum weekly benefit rate shall be 66 and two-thirds 55 percent of the average weekly wage in West Virginia as determined by the commissioner rounded to the next lowest multiple of $1, not to exceed $550.

(c) On July 1 of each year, the commissioner shall determine the maximum weekly benefit rate upon the basis of the formula set forth above and shall establish wage classes as are required, increasing or decreasing the amount of the base period wages required for each wage class by $150, establishing the weekly benefit rate for each wage class by rounded dollar amount to be 55 percent of one fifty-second  of the median dollar amount of wages in the base period for such wage class and establishing the maximum benefit for each wage class as an amount equal to twenty-six times the weekly benefit rate. Provided, That the commissioner shall may not increase or decrease the maximum weekly benefit rate for the period beginning on the effective date of the amendment and reenactment of this section in the regular session of the Legislature in 2009 until the threshold wage is reduced to $9,000, as required by §21A-1A-28(d) of this code The maximum weekly benefit rate, when computed by the commissioner, in accordance with the foregoing provisions, shall be rounded to the next lowest multiple of $1.

(d) After he or she has established such the wage classes, the commissioner shall prepare and publish a table setting forth such that information.

(e) Average weekly wage shall be computed by dividing the number of employees in West Virginia earning wages in covered employment into the total wages paid to employees in West Virginia in covered employment, and by further dividing said the result by 52, and shall be determined from employer wage and contribution reports for the previous calendar year which are furnished to the department on or before June 1 following such calendar year. The average weekly wage, as determined by the commissioner, shall be rounded to the next higher dollar.

(f) The computation and determination of rates as aforesaid shall be completed annually before July 1 and any such new wage class, with its corresponding wages in base period, weekly benefit rate, and maximum benefit in a benefit year established by the commissioner in the foregoing manner effective on July 1 shall apply only to a new claim established by a claimant on and after July 1, and does not apply to continued claims of a claimant based on his or her new claim established before said July 1.

BENEFIT TABLE

NOTE: The purpose of this bill generally relates to eligibility for and amount of unemployment benefits. The bill modifies the methodology for calculating maximum benefit rate. The bill modifies benefit table consistent with adoption of indexing. The bill requires the Workforce West Virginia Commissioner take certain actions to verify unemployment insurance claim program integrity. The bill requires commissioner to review suspicious or potentially improper claims under certain circumstances. The bill defines "state average unemployment rate". The bill limits the maximum duration of unemployment benefits based on the state average unemployment rate. The bill requires Workforce West Virginia to promulgate legislative rules. The bill establishes an internal effective date. The bill reduces the maximum benefit for each wage class. The bill requires work search activities to qualify for unemployment benefits. The bill defines what constitutes work search activities. The bill mandates submittal of proof of work search activities. The bill provides for verification of work search activities. The bill grants the commissioner of Workforce West Virginia discretion in verification of work search activities. The bill mandates the establishment of a process to refer individuals seeking unemployment benefits to job opportunities. The bill requires individuals receiving referrals to suitable work to apply for and accept that work. The bill mandates employers to report refusal of offer of employment to commissioner. The bill allows individuals who accept part-time non-suitable employment to receive unemployment benefits without reduction for wages under certain circumstances. The bill makes certain individuals applying for or receiving unemployment benefits exempt from work search requirements. The bill establishes a process for notification of work search activity requirements. The bill requires rulemaking. The bill sets an internal effective date.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.