23-727. Credits and charges to employer accounts
A. The commission shall maintain a separate account for each employer and shall credit the account with all contributions and payments in lieu of contributions paid by the employer and shall charge the account with all benefits chargeable to it.
B. Nothing in this chapter shall be construed to grant any employer or individuals in its service prior claims or rights to the amounts paid by the employer into the fund.
C. Except as otherwise provided in subsections D, E, F, G, I and J of this section and sections 23-773 and 23-777, benefits paid to an individual shall be charged against the accounts of the individual's base-period employers. The amount of benefits so chargeable against each base-period employer's account shall bear the same ratio to the total benefits paid to an individual as the base-period wages paid to the individual by the employer bear to the total amount of base-period wages paid to the individual by all the individual's base-period employers.
D. Benefits paid to an individual whose separation from work with any employer occurs under conditions found by the commission to be within those prescribed by section 23-775, paragraph 1 or 2 or for compelling personal reasons not attributable to the employer and not warranting disqualification for benefits shall not be used as a factor in determining the future contribution rate of the employer from whose employment the individual so separated, but the employer shall establish the condition of such separation to the satisfaction of the commission by submitting information the commission requires within ten days after the date of notification or mailing of notice by the commission that the individual has first filed a claim for benefits.
E. Benefits paid to an individual who, during the individual's base period, earned wages for part-time employment with an employer shall not be used as a factor in determining the future contribution rate of that employer if the employer continues to give employment opportunities to the individual to the same extent while the individual is receiving benefits as during the base period and the employer submits information the commission may require within ten working days after the date of notification or mailing of notice by the commission that the individual has first filed a claim for benefits. The commission has the burden of proof to establish that the employer failed to give employment opportunities to the individual to the same extent as during the base period.
F. Benefits paid to an individual whose employment was terminated by retirement pursuant to a nongovernmental retirement or lump sum retirement pay plan under which the age of mandatory retirement has been agreed on between the employer and its employees or by the bargaining agent representing such employees shall not be used as a factor in determining the future contribution rate of that employer but the employer shall establish that fact by submitting information the commission may require within ten days after the date of notification or mailing of notice by the commission that the individual has first filed a claim for benefits.
G. Benefits paid pursuant to section 23-771, subsections B and D shall not be used as a factor in determining the future contribution rate of the affected base-period employers.
H. A determination that benefits paid shall be used in determining future contribution rates of the employer may be appealed by the employer in the same manner provided for appeals of benefit determinations.
I. Benefits paid to an individual whose employment was terminated because the individual's employer was called to active duty in the military shall not be used as a factor in determining the future contribution rate of the employer from whose employment the individual was terminated.
J. Benefits paid to an individual whose employment was terminated because a former employee of the employer returned to work for the employer after being called to active duty in the military shall not be used as a factor in determining the future contribution rate of the employer from whose employment the individual was terminated.
K. The commission shall not relieve an employer's account of charges relating to an erroneous benefit payment if the commission determines both of the following:
1. The erroneous benefit payment was made because the employer or an agent of the employer failed to timely or adequately respond to a written request from the commission for information relating to a claim for unemployment compensation.
2. The employer or the employer's agent has established a pattern of failing to timely or adequately respond to requests.
L. For the purposes of subsection K of this section:
1. " Erroneous benefit payment" means a payment that would not have been made but for the failure of the employer or the employer's agent to make a timely or adequate response as described in subsection K, paragraph 1 of this section in regard to the claim for unemployment compensation.
2. " Pattern of failing" means the repeated documented failure of an employer or employer's agent to make timely and adequate responses as described in subsection K, paragraph 1 of this section with consideration of the number of instances of failure in relation to the total number of requests. Pattern of failing shall be determined by reviewing the most immediate twelve month prior period. A pattern shall be established if the employer or the agent representing the employer has five or more failures or failures in more than five per cent of the number of requests, whichever is greater. When an agent is representing the employer, the five or more failures or failures in more than five per cent of the number of requests shall be specific to the individual employer's account.