(A) Notwithstanding any other provision of law, the department shall not relieve the charge benefits to an employer's account when it determines that the overpayment has been made to a claimant and it determines that both of the following conditions apply:
(1) the overpayment occurred because the employer was at fault for failing to respond timely or adequately to a written request of the department for information relating to an unemployment compensation claim; and
(2) the employer exhibits a pattern of failure to timely or adequately respond to requests from the department for information relating to unemployment compensation claims on three or more occasions, or three percent of requests made, within a single calendar year, whichever is greater, provided:
(a) if an employer uses a third-party agent to respond on its behalf to the department's request for information relating to an unemployment compensation claim, the agent's actions on behalf of the employer will be considered when determining a pattern of behavior;
(b) a response is considered untimely if it fails to meet the time as prescribed in the statute or in the regulations;
(c) a response is considered inadequate if it fails to provide sufficient facts to enable the department to make an accurate determination of benefits that do not result in an overpayment. However, a response may not be considered inadequate if the department fails to request the necessary information.
(B) In all cases where the department contacts, or attempts to contact, an employer via telephone concerning a claim for benefits, it must document the contact, or attempt to contact, the employer and provide the documentation to the employer upon request. The documentation must contain the name of the department's staff contacting, or attempting to contact, the employer, the date, time, and whether the department's staff spoke with the employer, and the name of the person with whom the department's staff spoke, if anyone.
(C) A written request for information may be made by electronic mail provided, the employer has opted for notice by electronic mail pursuant to Section 41-35-615.
(D) The department shall charge an employer's account that meets the conditions of subsection (A) for each week of unemployment compensation that is an overpayment until the department makes a determination that the individual is no longer eligible for unemployment compensation and stops making such payments.
(E) If the claim is a combined wage claim, the determination of not charging for the combined wage claim shall be made by the paying state. If the response from the employer does not meet the criteria established by the paying state for an adequate or timely response, the paying state promptly must notify the transferring state of its determination and the employer must be appropriately charged.
(F)(1) The department must waive the charging of benefits to an employer's account when the department finds the employer failed to timely or adequately respond due to good cause.
(2) For the purposes of this section, "good cause" may include, but is not limited to, an error made by the department that results in the employer's error, or a natural disaster, emergency, or similar event, or an illness on the part of the employer, the employer's agent of record, or the employer's staff charged with responding to inquiries. The burden is on the employer to establish good cause.
(G) Determinations of the department prohibiting the relief of charges pursuant to this section shall be subject to appeal pursuant to procedures contained in Chapter 35, Title 41.
(H) The department shall charge benefits to an employer's account pursuant to this section for any overpayment determined by the department after October 21, 2013.
HISTORY: 2013 Act No. 53, Section 2, eff June 7, 2013.