CHAPTER 258 - UNEMPLOYMENT COMPENSATION COMMISSION
AN ACT TO ESTABLISH A SYSTEM OF UNEMPLOYMENT COMPENSATION FOR THE UNEMPLOYED CITIZENS OF THE STATE OF DELAWARE, WITHOUT LIABILITY ON THE PART OF THE STATE OF DELAWARE, TO BE ADMINISTERED BY A COMMISSION AND ITS NEWLY CREATED AGENCIES, REQUIRING EMPLOYERS TO KEEP RECORDS AND MAKE REPORTS AND CERTAIN EMPLOYERS TO PAY CONTRIBUTIONS BASED ON PAYROLLS, TO PROVIDE MONEYS FOR THE PAYMENTS OF COMPENSATION TO CERTAIN UNEMPLOYED PERSONS, PROVIDING ~PROCEDURE AND ADMINISTRATIVE DETAILS FOR THE DETERMINATION, PAYMENT AND COLLECTION OF SUCH CONTRIBUTIONS, AND THE PAYMENT OF SUCH COMPENSATION PROVIDING FOR COOPERATION WITH THE FEDERAL GOVERNMENT AND ITS AGENCIES, CREATING CER! TAIN SPECIAL FUNDS IN THE CUSTODY OF THE STATE TREASURER AND PRESCRIBING PENALTIES FOR THE VIOLATION OF THE PROVISIONS OF THIS ACT.
Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:
DECLARATION OF STATE PUBLIC POLICY
As a guide to the interpretation and application of this Act, the public policy of this State is declared to be as follows: Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this State. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this greatest hazard of our economic life. This can be accomplished by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment from which benefits may be paid for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance. The legislature, therefore, declares that in its considered judgment the public good, and the general welfare of the citizens of this State require the enactment of this measure, under the police power of the State, for the compulsory setting aside of unemployment reserve to be used for the benefit of persons unemployed through no fault of their own.
Section 1. This Act shall be known and may be cited as the Unemployment Compensation Law.
Section 2. As used in this Ad, unless the context clearly requires otherwise:
(a) "Base period" means the period beginning with the first day of the nine completed calendar quarters immediately preceding the first day of an individual's benefit year and ending with the last day of the next to the last completed calendar quarter immediately preceding any week with respect to which benefits are payable.
(b) "Benefits" mean the money payments payable to an individual, as provided in this Act, with respect to his unemployment.
(c) "Benefit year," with respect to any individual, means the fifty-two-consecutive-week period beginning with the first day of the week with respect to which benefits are first payable to him, and thereafter the fifty-two-consecutive-week period beginning with the first day of the first week with respect to which benefits are next payable to him after the termination of his last preceding benefit year.
(d) "Contributions" means the money payments to the State unemployment compensation fund required by this Act.
(e) "Calendar quarter" means the period of three consecutive calendar months ending on March 31, June 30, September 30, or December 31, excluding, however, any calendar quarter or portion thereof which occurs prior to January 1, 1938, or the equivalent thereof as the commission may by regulation prescribe.
(f) "Commission" means the Unemployment Compensation Commission established by this Act.
(g) "Employing unit" means any individual or type of organization, including any partnership, association, trust, estate, joint stock company, insurance company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal representative of a deceased person, which has or subsequent to January 1, 1936, had in its employ one or more individuals performing services for it within this State. All individuals performing services within this State for any employing unit which maintains two or more separate establishments within this State shall be deemed to be employed by a single employing unit for all other purposes of this Act. Whenever any employing unit contracts with or has under it any contractor or subcontractor for any work, which is part of its usual trade, occupation, profession, or business, unless the employing unit as well as each such contractor or subcontractor is an employer by reason of section 2 (h) or section 8 (c) of this Act, the employing unit shall for all the purposes of this Act be deemed to employ each individual in the employ of each such contractor or subcontractor for each day during which such individual is engaged in performing such work; except that each such contractor or subcontractor who is an employer by reason of section 2 (h) or section 8 (c) of this Act shall alone be liable for the employers' contributions measured by wages payable to individuals in his employ, and except that any employing unit which shall become liable for and pay contributions with respect to individuals in the employ of any such contractor or subcontractor who is not an employer by reason of section 2 (h) or section 8 (c) of this Act, may recover the same from such contractor or subcontractor. Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall be deemed to be employed by such employing unit for all the purposes of this Act, whether such individual was hired or paid directly by such employing unit or by such agent or employee, provided the employing unit had actual or constructive knowledge of the work.
(h) "Employer" means:
(1) Any employing unit which in each of twenty different weeks within either the current or the preceding calendar year (whether or not such weeks are or were consecutive) has or had in employment, one or more individuals (irrespective of whether the same individuals are or were employed in each such week);
(2) Any employing unit which acquired the organization, trade, or business or substantially all the assets thereof, of another which at the time of such acquisition was an employer subject to this Act;
(3) Any employing unit which acquired the organization, trade, or business, or substantially all the assets thereof, of another employing unit (not an employer subject to this Act) and which, if subsequent to such acquisition it were treated as a single unit with such other employing unit, would be an employer under paragraph (1) of this subsection;
(4) Any employing unit which, together with one or more other employing units, is owned or controlled (by legally enforceable means or otherwise) directly or indirectly by the same interests, or which owns or controls one or more other employing units (by legally enforceable means or otherwise), and which, if treated as a single unit with such other employing units or interests, or both, would be an employer under paragraph (1) of this subsection;
(5) Any employing unit which, having become an employer under paragraph (1) (2) (3) and (4) has not, under section 8, ceased to be an employer subject to this Act; or
(6) For the effective period of its election pursuant to section 8 (c) any other employing unit which has elected to become fully subject to this Act.
(i) (1) "Employment," subject to the other provisions of this subsection, means service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied.
(2) The term "employment" shall include an individual's entire service, performed within or both within and without this State if--
(A) The service is localized in this State; or
(B) The service is not localized in any State but some of the service is performed in this State and (i) the base of operations, or, if there is no base of operations, then the place from which such service is directed or controlled, is in this State; or (ii) the base of operations or place from which such 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 State.
(3) Services not covered under paragraph (2) of this subsection and performed entirely without this State, with respect to no part of which contributions are required and paid under an unemployment compensation law of any other State or of the Federal Government, shall be deemed to be employment subject to this Act if the individual performing such services is a resident of this State and the commission approves the election of the employing unit for whom such services are performed that the entire service of such individual shall be deemed to be employment subject to this Act.
(4) Service shall be deemed to be localized within a State if--
(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 within the State, for example, is temporary, or transitory in nature or consists of isolated transactions.
(5) Services performed by an individual for wages shall be deemed to be employment subject to this Act unless and until it is shown to the satisfaction of the commission that--
(A) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and
(B) Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
(C) Such individual is customarily engaged in an independently established trade, occupation, profession, or business.
(6) The term employment shall not include:
(1) Agricultural labor;
(2) Domestic service in a private home;
(3) Service performed as an officer or member of the crew of a vessel on the navigable waters of the United States;
(4) Service performed by an individual in the employ of his son, daughter, or spouse, and service performed by a child under the age of twenty-one in the employ of his father or mother;
(5) Service performed in the employ of any other State or its political subdivisions, or of the United States Government, or of an instrumentality of any other State or States or their political subdivisions or of the United States;
(6) Service performed in the employ of this State, or of any political subdivision thereof, or of any instrumentality of this State or its political subdivisions;
(7) Service performed in the employ of a corporation, community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which insures to the benefit of any private shareholder or individual;
(8) Service with respect to which unemployment f:ompensation is payable under an unemployment compensation system established by an Ad of Congress: Provided, that the commission is hereby authorized and directed to enter into agreements with the proper agencies under such Act of Congress, which agreements shall become effective ten days after publication thereof in the manner provided in section 11 (b) of this Ad for general rules, to provide reciprocal treatment to individuals who have, after acquiring potential rights to benefits under this Ad, acquired rights to unemployment compensation under such Act of Congress, or who have, after acquiring potential rights to unemployment compensation under such Ad of Congress, acquired rights to benefits under this Ad.
(j) "Employment office" means a free public employment office or branch thereof, operated by this State or maintained as a part of a State-controlled system of public employment offices.
(k) "Fund" means the unemployment compensation fund established by this Ad, to which all contributions required and from which all benefits provided under this Ad shall be paid.
(1) "States" includes, in addition to the States of the United States of America, Alaska, Hawaii, and the District of Columbia.
(m) "Total and partial unemployment"--
(1) An individual shall be deemed "totally unemployed" in any week during which he performs no services and with respect to which no wages are payable to him.
(2) An individual shall be deemed "partially unemployed" in any week of less than full-time work if the wages payable to him for such week are less than six-fifths of the weekly benefit amount he would be entitled to receive if totally unemployed and eligible.
(3) As used in this subsection, the term "wages" shall include only that part of remuneration for odd jobs or subsidiary work, or both, which is in excess of $2 in any one week, and the term "services" shall not include that part of odd jobs or subsidiary work, or both, for which remuneration equal to or less than $2 in any one week is payable.
(4) An individual's week of unemployment shall be deemed to commence only after his registration at any employment office, except as the commission may by regulation otherwise prescribe.
(n) "Wages" means all remuneration payable for personal services, including commissions and bonuses and the cash value of all remuneration payable in any medium other than cash. Gratuities customarily received by an individual in the course of his employment from persons other than his employing unit shall be treated as wages payable by his employing unit. The reasonable cash value of remuneration payable in any medium other than cash, and the reasonable amount of gratuities, shall be estimated and determined in accordance with rules prescribed by the commission.
(o) "Week" means such period of seven consecutive calendar days, as the commission may by regulations prescribe.
(p) "Weekly benefit amount": An individual's "weekly benefit amount" means the amount of benefits he would be entitled to receive for one week of total unemployment.
Section 3 (a) Payment of Benefits: Twenty-four months after the date when contributions first accrue under this Act, benefits shall become payable from the fund. All benefits shall be paid through employment offices, in accordance with such regulations as the commission may prescribe.
(b) Weekly Benefit Amount for Total Unemployment:--Each eligible individual who is totally unemployed in any week shall be paid, with respect to such week, benefits at the rate of fifty per centum of his full-time weekly wages but not more than $15.00, nor less than $5.00 per week.
(c) Weekly Benefit for Partial Unemployment:--Each eligible individual who is partially unemployed in any week shall be paid with respect to such week a partial benefit. Such partial benefit shall be an amount equal to the difference between his weekly benefit amount and five-sixths of his wages (as used in section 2 (m) for such week). If such partial benefit for any week equals less than $2, it shall not be payable unless and until the accumulated total of such partial benefits with respect to weeks occurring within the thirteen preceding weeks equals $2 or more.
(d) Determination of Full-Time Weekly Wage:--(1) The full-time weekly wage of any individual means the weekly wages that such individual would receive if he were employed at the most recent wage rate earned by him for employment by an employer during the period prescribed pursuant to paragraph (3) of this subsection, and for the customary scheduled full-time weekly hours prevailing for his occupation in the enterprise in which he last earned wages for employment by an employer during the same period.
(2) If the commission finds that the full-time weekly wage, as above defined, would be unreasonable or arbitrary or not readily determinable with respect to any individual, the full-time weekly wage of such individual shall be deemed to be one-thirteenth of one-eighth of his total wages for employment by employers during his base period.
(3) The full-time weekly wage of any individual shall be determined and redetermined at such reasonable times as the commission may find necessary to administer this Act and may by regulation prescribe. The period hereinabove referred to shall consist of the next to the last completed calendar quarter immediately preceding the date with respect to which an individual's full-time weekly wage is determined.
(e) Duration of Benefits:--The commission shall compute wage credits for each individual by crediting him with the wages earned by him for employment by employers during each quarter, or $390, whichever is the lesser. Benefits paid to any eligible individual shall be charged, in the same chronological order as such wages were earned, against one-sixth of his wage credits which are based upon wages earned during his base period and which have not been previously charged hereunder. The maximum total amount of benefits payable to any eligible individual during any benefit year shall not exceed whichever is the lesser of (1) thirteen times his weekly benefit amount, and (2) one-sixth of such uncharged wage credits with respect to his base period.
(f) Part-Time Workers:--(1) As used in this subsection the term "part-time worker" means an individual whose normal work is in an occupation in which his services are not required for the customary scheduled full-time hours prevailing in the establishment in which he is employed or who, owing to personal circumstances, does not customarily work the customary scheduled full-time hours prevailing in the establishment in which he is employed.
(2) The commission shall prescribe fair and reasonable general rules applicable to part-time workers for determining their full-time weekly wage and the total wages for employment by employers required to qualify such workers for benefits. Such rules, shall with respect to such workers, supersede any inconsistent provisions of this Act, but, so far as practicable, shall secure results reasonably similar to those provided in the analogous provisions of this Act.
BENEFIT ELIGIBILITY CONDITIONS
Section 4. An unemployed individual shall be eligible to receive benefits with respect to any week only if the commission finds that
(a) He has registered for work at and thereafter has continued to report at an employment office in accordance with such regulations as the commission may prescribe.
(b) He has made a claim for benefits in accordance with the provisions of section 6 (a) of this Act.
(c) He is able to work, and is available for work.
(d) Prior to any week for which he claims benefits he has been totally unemployed for a waiting period of two weeks (and for the purposes of this subsection, two weeks of partial unemployment shall be deemed to be equivalent to one week of total unemployment). Such weeks of total or partial unemployment or both must be consecutive. No week shall be counted as a week of total unemployment for the purposes of this subsection--
(1) Unless it occurs within the thirteen consecutive weeks preceding the week for which he claims benefits, provided that this requirement shall not interrupt the payment of benefits, for consecutive weeks of unemployment; and provided further that no individual shall be required to accumulate more than five waiting period weeks during any sixty-five consecutive week period;
(2) If benefits have been paid with respect thereto;
(3) Unless the individual was eligible for benefits with respect thereto in all respects except for the requirements of section (b) and (e) of this section;
(4) Unless it occurs after benefits first could become payable to any individual under this Act.
(e) He has within the first three out of the last four completed calendar quarters immediately preceding the first day of his benefit year, earned wages for employment by employers equal to not less than thirteen times his weekly benefit amount.
DISQUALIFICATION FOR BENEFITS
Section 5. An individual shall be disqualified for benefits
(a) For the week in which he has left work voluntarily without good cause, and for not less than one or more than the five weeks which immediately follow such week (in addition to the waiting period) as determined by the commission according to the circumstances in each case.
(b) For the week in which he has been discharged for misconduct connected with his work, and for not less than one or more than the five weeks which immediately follow such week (in addition to the waiting period) as determined by the Commission, according to the circumstances in each case.
(c) If the commission finds that he has failed, without good cause, either to apply for available, suitable work when so directed by the employment office or the commission or to accept suitable work when offered him, or to return to his customary self-employment (if any) when so directed by the commission.
(1) In determining whether or not any work is suitable for an individual, the commission shall consider the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence.
(2) Not-withstanding any other provisions of this Act, no work shall be deemed suitable and benefits shall not be denied under this Act to any otherwise eligible individual for refusing to accept new work under any of the following conditions: (a) If the position offered is vacant due directly to a strike, lockout, or other labor dispute; (b) if the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; (c) if as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.
(d) For any week with respect to which the commission finds that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed.
(e) For any week with respect to which he is receiving or has received remuneration in the form of--
(1) Wages in lieu of notice;
(2) Compensation for temporary partial disability under the Workmen's Compensation Law of any States or under a similar law of the United States; or
(3) Old-age benefits under Title II of the Social Security Act, as amended, or similar payments under any Act of Congress:
Provided, That if such remuneration is less than the benefits which would otherwise be due under this Act, he shall be entitled to receive for such week, if otherwise eligible, benefits reduced by the amount of such remuneration.
CLAIMS FOR BENEFITS
Section 6 (a) Filing:--Claims for benefits shall be made in accordance with such regulations as the commission may prescribe. Each employer shall post and maintain printed statements of such regulations in places readily accessible to individuals in his service and shall make available to each such individual at the time he becomes unemployed, a printed statement of such regulations. Such printed statements shall be supplied by the commission to each employer without cost to him.
(b) Initial Determination:--A representative designated by the commission, and hereinafter referred to as a deputy, shall promptly examine the claim and, on the basis of the facts found by him, shall either determine whether or not such claim is valid, and if valid, the week with respect to which benefits shall commence, the weekly benefit amount payable and the maximum duration thereof, or shall refer such claim or any question involved therein to an appeal tribunal, which shall make its decision with respect thereto in accordance with the procedure described in subsection (c) of this section. The deputy shall promptly notify the claimant and any other interested parties of the decision and the reasons therefor; the deputy may for good cause reconsider his decision and shall promptly notify the claimant and such other interested parties of the denial of such application or of his amended decision and the reasons therefor, as the case may be. Unless the claimant or any such interested party, within five calendar days after the delivery of the deputy's notification, or within seven calendar days after such notification was mailed to his last-known address, files an appeal from such decision, such decision shall be final and benefits shall be paid or denied in accordance therewith. If an appeal is duly filed benefits with respect to the period prior to the final decision of the commission shall be paid only after such decision: Provided, That if an appeal tribunal affirms a decision of a deputy, or the commission affirms a decision of an appeal tribunal, allowing benefits, such benefits shall be paid regardless of any appeal which may thereafter be taken, but if such decision is finally reversed, no employer's account shall be charged with benefits so paid.
(c) Appeals:--Unless such appeal is withdrawn, an appeal tribunal, after affording the parties reasonable opportunity for fair hearing, shall affirm or modify the findings of fact and decision of the deputy. The parties shall be duly notified of such tribunal's decision, together with its reasons therefor, which shall be deemed to be the final decision of the commission, unless within ten days after the date of notification or mailing of such decision, further appeal is initiated pursuant to subsection (e) of this section.
(d) Appeal Tribunals:--To hear and decide disputed claims, the commission shall appoint one or more impartial appeal tribunals consisting in each case of either a salaried examiner, or a body consisting of three members, one of whom shall be a salaried examiner who shall serve as chairman, one of whom shall be a representative of employers and the other of whom shall be a representative of employees; each of the latter two members shall serve at the pleasure of the commission and be paid a fee of not more than $10 per day of active service on such tribunal plus necessary expenses. No person shall participate on behalf of the commission in any case in which he is an interested party. The commission may designate alternates to serve in the absence or disqualification of any member of an appeal tribunal. The chairman shall act alone in the absence or disqualification of any other member and his alternates. In no case shall the hearing proceed unless the chairman of the appeal tribunal is present.
(e) Commission Review:--The commission may on its own motion affirm, modify, or set aside any decision of an appeal tribunal on the basis of the evidence previously submitted in such case, or direct the taking of additional evidence, or may permit any of the parties to such decision to initiate further appeal before it. The commission shall permit such further appeal by any of the parties interested in a decision of an appeal tribunal which is not unanimous and by the deputy whose decision has been overruled or modified by an appeal tribunal. The commission may remove to itself or transfer to another appeal tribunal the proceedings on any claim pending before an appeal tribunal. Any proceedings so removed to the commission shall be heard by a quorum thereof in accordance with the requirements of subsection (c) of this section. The commission shall promptly notify the interested parties of its findings and decision.
(f) Procedure:--The manner in which disputed claims shall be presented and the conduct of hearings and appeals shall be in accordance with regulations prescribed by the commission for determining the rights of the parties, whether or not such regulations conform to common law or statutory rules of evidence and other technical rules of procedure. A full and complete record shall be kept of all proceedings in connection with a disputed claim. All testimony at any hearing upon a disputed claim shall be recorded, but need not be transcribed unless the disputed claim is further appealed.
(g) Witness Fees:--Witnesses subpoenaed pursuant to this section shall be allowed fees at a rate fixed by the commission. Such fees shall be deemed a part of the expense of administering this Act.
() Appeal to Court:--Any decision of the commission in the absence of an appeal therefrom as herein provided shall become final ten days after the date of notification or mailing thereof, and judicial review thereof shall be permitted only after any party claiming to be aggrieved thereby has exhausted his administrative remedies as provided by this Act. The commission shall be deemed to be a party to any judicial action involving any such decision, and may be represented in any such judicial action by any qualified attorney employed by the commission and designated by it for that purpose or at the commission's request by the attorney general.
(a) Court Review:--Within ten days after the decision of the commission has become final, any party aggrieved thereby may secure judicial review thereof by commencing an action in the Superior Court in the County in which the claimant resides or the employer's place of business is located, against the commission for the review of such decision, in which action any other party to the proceeding before the commission shall be made a defendant. In such action, a petition which need not be verified, but which shall state the grounds upon which a review is sought, shall be served upon the commission, or upon such person as the commission may designate and such service shall be deemed completed service on all parties, but there shall be left with the party so served as many copies of the petition as there are defendants and the commission shall forthwith mail one such copy to each defendant. With its answer, the commission shall certify and file with said court all documents and papers and a transcript of all testimony taken in the matter, together with the commission's findings of fact and decision therein. The commission may also, in its discretion, certify to such court questions of law involved in any decision. In any judicial proceeding under this section, the findings- of the commission as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law. Such actions, and the questions so certified, shall be heard in a summary manner and shall be given precedence over all other civil cases except cases arising under the Workmen's Compensation Law of this State. An appeal may be taken from the decision of the Superior Court to the Supreme Court of State of Delaware in the same manner, but not inconsistent with the provisions of this Act, as is provided in civil cases. It shall not be necessary in any judicial proceeding under this section, to enter exceptions to the rulings of the commission and no bond shall be required for entering such appeal. Upon the final determination of such judicial proceeding, the commission shall enter an order in accordance with such determination. A petition for judicial review shall not act as a supersedeas or stay unless the commission shall so order.
Section 7 (a) Payment:--(1) On and after January 1, 1937, contributions shall accrue and become payable by each employer for each calendar year in which he is subject to this Act, with respect to wages payable for employment occurring during such calendar year. Such contributions shall become due and be paid by each employer to the commission for the fund in accordance with such regulation as the commission may prescribe, and shall not be deducted, in whole or in part, from the wages of individuals in such employer's employ.
(2) In the payment of any contributions, a fractional part of a cent shall be disregarded unless it amounts to one-half cent or more, in which case it shall be increased to 1 cent.
(b) Rate of Contribution:--Each employer shall pay contributions equal to the following percentages of wages payable by him with respect to employment:
(1) 1.8 per centum with respect to employment during the calendar year 1937;
(0) With respect to employment after December 31, 1937, 2.7 per centum, except as otherwise prescribed in subsection (c) of this section.
(c) Future Rates Based on Benefit Experience:--(1) The commission shall maintain a separate account for each employer, and shall credit his account with all the contributions paid on his own behalf. But nothing in this Act shall be construed to grant any employer or individuals in his service prior claims or rights to the amounts paid by him into the fund either on his own behalf or on behalf of such individuals. Benefits paid to an eligible individual shall be charged, in the amount hereinafter provided, against the account of his most recent employers, in the inverse chronological order in which the employment of such individual occurred. The maximum amount so charged against the account of any employer shall not exceed one-sixth of the wages payable to such individual by each such employer for employment which occurs on and after the first day of such individual's base period, or $65 per completed calendar quarter or portion thereof, whichever is the lesser; but nothing in this section shall be construed to limit benefits payable pursuant to section 3 of this Act. The commission shall by general rules prescribe the manner in which benefits shall be charged against the accounts of several employers for whom an individual performed employment at the same time.
(2) The commission may prescribe regulations for the establishment, maintenance, and dissolution of joint accounts by two or more employers, and shall, in accordance with such regulations and upon application by two or more employers to establish such an account, or to merge their several individual accounts in a joint account, maintain such joint account as if it constituted a single employer's account.
(1) The commission shall, for the year 1942 and for each calendar year thereafter, classify employers in accordance with their actual experience in the payment of contributions on their own behalf and with respect to benefits charged against their accounts, with a view to fixing such contribution rates as will reflect such experience. The commission shall determine the contribution rate of each employer in accordance with the following requirements:
(i) Each employer's rate shall be 2.7 per centum, except as otherwise provided in the following provisions. No employer's rate shall be less than 2.7 per centum unless and until there shall have been three calendar years throughout which any individual in his employ could have received benefits if eligible.
(ii) Each employer's rate for the twelve months commencing January 1 of any calendar year shall be determined on the basis of his record up to the beginning of such calendar year. If, at the beginning of such calendar year, the total of all his contributions paid on his own behalf for all past years exceeds the total benefits charged to his account for all such years, his contribution rate shall be:
(A) 1.8 per centum, if such excess equals or exceeds 71/2 but is less than 10 per centum of his average annual pay roll;
(B) .9 per centum, if such excess equals or exceeds 10 but is less than 12.5 per centum of his average annual pay roll;
(C) Cease if such excess equals or exceeds 12.5 per centum of his average annual pay roll.
If the total of his contributions, paid on his own behalf for all past periods or for the past sixty consecutive calendar months, whichever period is more advantageous to such employer for the purposes of this paragraph, is less than the total benefits charged against his account during the same period, his rate shall be 4 per centum.
(iii) As used in this section the term "annual pay roll" means the total amount of wages payable by an employer (regardless of the time of payment) for employment during a calendar year, and the term "average annual pay roll" means the average of the annual pay rolls of an employer for the last three or five preceding calendar years, whichever average is higher.
PERIOD, ELECTION, AND TERMINATION OF EMPLOYER'S COVERAGE
Section 8. (a) Any employing unit which is or becomes an employer subject to this Act within any calendar year shall be subject to this Act during the whole of such calendar year.
(b) Except as otherwise provided in subsection (C) of this section, an employing unit shall cease to be an employer subject to this Act only as of the 1st day of January of any calendar year, only if it files with the commission, prior to the 5th day of January of such year, a written application for termination of coverage, and the commission finds that there were no twenty (20) different days, each day being in a different week within the preceding calendar year, within which such employing unit employed one (1) or more individuals in employment subject to this Act. For the purposes of this subsection, the two or more employing units mentioned in paragraph (2) or (3) or (4) of section 2 (h) shall be treated as a single employing unit.
(c) (1) An employing unit, not otherwise subject to this Act, which files with the commission its written election to become an employer subject hereto for not less than two calendar years, shall, with the written approval of such election by the commission, become an employer subject hereto the same extent as all other employers, as of the date stated in such approval, and shall cease to be subject hereto as of January 1 of any calendar year subsequent to such two calendar years, only if at least thirty days prior to such 1st day of January, it has filed with the commission a written notice to that effect.
(2) Any employing unit for which services that do not constitute employment as defined in this Act are performed, may file with the commission a written election that all such services performed by individuals in its employ in one or more distinct establishments or places of business shall be .deemed to constitute employment for all purposes of this Act for not less than two calendar years. Upon the written approval of such election by the commission, such services shall be deemed to constitute employment subject to this Act from and after the date stated in such approval. Such services shall cease to be deemed employment subject hereto as of January 1 of any calendar year subsequent to such two calendar years, only if at least thirty days prior to such 1st day of January such employing unit has filed with the commission a written notice to that effect.
UNEMPLOYMENT COMPENSATION FUND
Section 9 (a) Establishment and Control:--There is hereby established as a special fund, separate and apart from all public moneys or funds of this State, an unemployment compensation fund, which shall be administered by the commission exclusively for the purposes of this Act, This fund shall consist of (1) all contributions collected under this Act, together with any interest thereon collected pursuant to section 14 of this Act; (2) all fines and penalties collected pursuant to the provisions of this Act; (3) interest earned upon any moneys in the fund; (4) any property or securities acquired through the use of moneys belonging to the fund; and (5) all earnings of such property or securities. All moneys in the fund shall be mingled and undivided.
(b) Accounts and Deposit:--The State Treasurer shall be ex-officio, the treasurer and custodian of the fund who shall administer such fund in accordance with the directions of the commission and shall issue his warrants upon it in accordance with such regulations as the commission shall prescribe. He shall maintain within the fund three separate accounts: (1) a clearing account, (2) an unemployment trust fund account, and (3) a benefit account. All moneys payable to the fund, upon receipt thereof by the commission shall be forwarded to the treasurer who shall immediately deposit them in the clearing account. Refunds payable pursuant to section 14 of this Act may be paid from the clearing account upon warrants issued by the treasurer under the direction of the commission. After clearance thereof, all other moneys in the clearing account shall be immediately deposited with the Secretary of the Treasury of the United States of America to the credit of the account of this State in the unemployment trust fund, established and maintained pursuant to section 904 of the Social Security. Act, as amended, any provisions of law in this State relating to the deposit, administration, release, or disbursement of moneys in the possession or custody of this State to the contrary notwithstanding. The benefit account shall consist of all moneys requisitioned from this State's account in the unemployment trust fund. Except as herein otherwise provided, moneys in the clearing and benefit accounts may be deposited by the treasurer, under the direction of the commission, in any bank or public depository in which general funds of the State may be deposited, but no public deposit insurance charge or premium shall be paid out of the fund. The treasurer shall give a separate bond conditioned upon the faithful performance of his duties as custodian of the fund in an amount fixed by the commission and in a form prescribed by law or approved by the Attorney General. Premiums for said bond shall be paid from the administration fund.
(c) Withdrawals:--Moneys shall be requisitioned from this State's account in the unemployment trust fund solely for the payment of benefits and in accordance with regulations prescribed by the commission. The commission shall from time to time requisition from the unemployment trust fund such amounts, not exceeding the amounts standing to this State's account therein, as it deems necessary for the payment of benefits for a reasonable future period. Upon receipt thereof the treasurer shall deposit such moneys in the benefit account and shall issue his warrants for the payment of benefits solely from such benefit account. Expenditures of such moneys in the benefit account and refunds from the clearing account shall not be subject to any provisions of law requiring specific appropriations or other formal release by State officers of money in their custody. All warrants issued by the treasurer for the payment of benefits and refunds shall bear the signature of the treasurer and the counter-signature of the commission or its duly authorized agent for that purpose. Any balance of moneys requisitioned from the unemployment trust fund which remains unclaimed or unpaid in the benefit account after the expiration of the period for which such sums were requisitioned shall either be deducted from estimates for, and may be utilized for the payment of, benefits during succeeding periods, or, in the discretion of the commission, shall be redeposited with the Secretary of the Treasury of the United States of America to the credit of this State's account in the unemployment trust fund, as provided in subsection (b) of this section.
UNEMPLOYMENT COMPENSATION COMMISSION
Section 10. (a) Organization:--There is hereby created a commission to be known as the Unemployment Compensation Commission of Delaware. The commission shall consist of four members, who shall be appointed by the Governor, with the advice and consent of a majority of all the members elected to the Senate, within ninety days after the passage of this Act or after any vacancy occurs in its membership. During his term of membership on the commission no member shall serve as an officer or committee member of any political party organization, and not more than two members of the commission shall be members of the same political party. Each member shall hold office for a term of six years, except that (1) any member appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed shall be appointed for the remainder of such term; and (2) the terms of office of the members first taking office after the date of enactment of this Act shall expire, as designated by the Governor at the time of appointment, one at the end of two years, one at the end of four years, and two at the end of six years after the date of enactment of this Act. The Governor may at any time, after notice and hearing, remove any commissioner for gross inefficiency, neglect of duty, malfeasance, misfeasance, or nonfeasance in office.
(d) The Commission shall appoint an executive director who shall be the chief executive and approval officer of the commission and its official agent, who shall perform such duties hereunder as shall be delegated to him by the commission. He shall act as Secretary of the Commission and shall hold office for a term of six years subject to removal for cause upon the unanimous decision of the commission. He shall give his full time to the duties of this office, and shall be paid a suitable salary to be fixed by the commission.
(e) Divisions:--There is hereby established in the commission two coordinate divisions: The Delaware State employment service division hereby transferred to the commission as a division thereof, pursuant to Section 12 of this Act, and the unemployment compensation division. Each division shall be responsible for the discharge of its distinctive function. Each division shall be a separate administrative unit with respect to personnel, budget and duties, except insofar as the commission may find that such separation is impracticable. Each commissioner shall be paid from the unemployment compensation administration fund a fixed monthly salary at a rate determined by the Governor.
(f) Quorum:--Any three commissioners shall constitute a quorum. No vacancy shall impair the right of the remaining commissioners to exercise all of the powers of the commission.
Section 11. (a) Duties and Powers of Commission:--It shall be the duty of the commission to administer this Act; and it shall have power and authority to adopt, amend, or rescind such rules and regulations, to employ such persons, make such expenditures, require such reports, make such investigations, and take such other action as it deems necessary or suitable to that end. Such rules and regulations shall be effective upon publication in the manner, not inconsistent with the provisions of this Act, which the commission shall prescribe. The commission shall determine its own organization and methods of procedure in accordance with the provisions of this Act and shall have an official seal which shall be judicially noticed. Not later than the last day of February of each year, the commission shall submit to the Governor a report covering the administration and operation of this Act during the preceding calendar year and shall make such recommendations for amendments to this Act as it deems proper. Such reports shall include a balance sheet of the moneys in the fund in which there shall be provided, if possible, a reserve against the liability in future years to pay benefits in excess of the then current contributions, which reserve shall be set up by the commission in accordance with accepted actuarial principles on the basis of statistics of employment, business activity, and other relevant factors for the longest possible period. Whenever the commission believes that a change in contribution or benefit rates will become necessary to protect the solvency of the fund, it shall promptly so inform the Governor and the legislature, and make recommendations with respect thereto.
(g) Regulations and General and Special Rules:--General and special rules may be adopted, amended, or rescinded by the commission only after public hearing or opportunity to be heard thereon, of which proper notice has been given. General rules shall become effective ten days after filing with the Secretary of State and publication in one or more newspapers of general circulation in this State. Special rules shall become effective ten days after notification to or mailing to the last known address of the individuals or concerns affected thereby. Regulations may be adopted, amended, or rescinded by the commission and shall become effective in the manner and at the time prescribed by the commission.
(h) Publication:--The commission shall cause to be printed for distribution to the public the text of this Act, its regulations and general and special rules, its annual reports to the Governor, and any other material it deems relevant and suitable and shall furnish the same to any person upon application therefor.
(i) Personnel:--Subject to other provisions of this Act, the 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. The commission may delegate to any such person 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 shall classify positions under this Act and shall establish salary schedules and minimum personnel standards for the positions so classified. It shall provide for the holding of examinations to determine the qualifications of applicants for the positions so classified, and except for temporary appointments of not to exceed six months duration, such personnel shall be appointed on the basis of efficiency and fitness as determined in such examinations. No person who is an officer or committee member of any political party organization or who holds or is a candidate for any public office shall be appointed or employed under this Act. The commission shall establish and enforce fair and reasonable regulations for appointments, promotions, and demotions based upon ratings of efficiency and fitness and for terminations for cause.
(e) Advisory Council:--There is hereby created a State advisory council, hereafter called the advisory council of seven members to be appointed by the Governor, with the advice and consent of the Senate. Three of the appointees to this council shall be persons who, on account of their vocations, employments, or affiliations, can be classed as representatives of employers and three shall be persons who, on account of their vocations, employments or affiliations, can be classed as representatives of employees, and one who may be fairly regarded as a representative of the general public. Each member of the advisory council shall serve without salary but shall be allowed traveling and other incidental expenses, and shall hold office for a term of six years, except that (1) any member appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed, shall be appointed for the remainder of such term; and (2) the terms of office of the members first taking office after the date of the enactment of this Act shall expire, as designated by the Governor at the time of appointment, three at the end of two years, two at the end of four years, and two at the end of six years after the date of enactment of this Act. The advisory council shall choose one of its members as chairman. The advisory council shall have access to all the records of the commission and to the reasonable services of employees of the commission. It may request any member of the commission or any of its employees, or any employer or employee, subject to this act to appear before it and to testify relative to the functioning of the act and to other relevant matters. The advisory council may conduct research of its own, make public reports, and recommend to the commission, the Governor and the Legislature needed changes from time to time.
(f) Employment Stabilization:--The commission with the advice and aid of advisory council, and through the appropriate divisions, shall take all appropriate steps to reduce and prevent unemployment; to encourage and assist in the adoption of practical methods of vocational training, retraining and vocational guidance; to investigate, recommend, advise, and assist in the establishment and operation, by municipalities, counties, school districts, and the State, of reserves for public works to be used in time of business depression and unemployment, to promote the re-employment of unemployed workers throughout the State in every other way that may be feasible; and to these ends to carry on and publish the results of investigations and research studies.
(g) Records and Reports:--Each employing unit shall keep true and accurate work records, containing such information as the commission may prescribe. Such records shall be open to inspection and be subject to being copied by the commission or their authorized representatives at any reasonable time and as often as may be necessary. The commission and the chairman of any appeal tribunal may require from any employing unit any sworn or unsworn reports, with respect to persons employed by such employing unit which the commission or such chairman deems necessary for the effective administration of this Act. Information thus obtained, or obtained from any individual pursuant to the administration of this Act, shall except to the extent necessary for the proper presentation of a claim be held confidential and shall not be published or be open to public inspection (other than to members or employees of the commission or of the Federal Social Security Board in the performance of their public duties) in any manner revealing the individual's or employing unit's identity, but any claimant (or his legal representative) at a hearing before an appeal tribunal or the commission shall be supplied with information from such records to the extent necessary for the proper presentation of his claim. Any employee of the commission, an appeal tribunal or the Advisory Council who violates any provision of this section shall be fined not less than $20 nor more than $200, or imprisoned for no longer than ninety days, or both.
(h) Oaths and Witnesses:--In the discharge of the duties imposed by this Act, the members of the commission, the chairman of an appeal tribunal, and any duly authorized representative of either of them shall have power to administer oaths and affirmations, take depositions, certify to official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim or the administration of this Act.
(i) Subpoenas:--In case of contumacy by, or refusal to obey a subpoena issued to any person, any court of this State within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the commission, a chairman of an appeal tribunal or any duly authorized representative of either shall have jurisdiction to issue to such person an order requiring such person to appear before the commission, an appeal tribunal or any duly authorized representative of either there to produce evidence if so ordered or there to give testimony touching the matter under investigation or in question and any failure to obey such order of the Court may be punished by said Court as a contempt thereof. Any person who shall without just cause fail or refuse to attend and testify or to answer any lawful inquiry or to produce books, papers, correspondence, memoranda, and other records, if it is in his power so to do, in obedience to a subpoena of the commission, a chairman of an appeal tribunal or any duly authorized representative of either, shall be punished by a fine of not less than $20 nor more than $200, or by imprisonment for not longer than sixty days, or by both such fine and imprisonment, and each day such violation continues shall be deemed to be a separate offense.
(j) Protection Against Self-Incrimination:--No person shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda, and other records before the commission, the chairman of an appeal tribunal, or any duly authorized representative of either of them, or in obedience to the subpoena of any of them in any cause or proceeding before the commission, or an appeal tribunal, on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to a penalty or forfeiture; but no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying.
(k) State-Federal Cooperation:--In the administration of this Act, the commission shall cooperate to the fullest extent consistent with the provisions of this Act, with the Social Security Board, created by the Social Security Act, approved August 14, 1935, as amended; shall make such reports in such form and containing such information as the Social Security Board may from time to time require, and shall comply with such provisions as the Social Security Board may from time to time find necessary to assure the correctness and verification of such reports; and shall comply with the regulations prescribed by the Social Security Board governing the expenditures of such sums as may be allotted and paid to this State under Title III of the Social Security Act for the purpose of assisting in the administration of this Act.
Upon request therefor the commission shall furnish to any agency of the United States charged with the administration of public works or assistance through public employment, the name, address, ordinary occupation, and employment status of each recipient of benefits and such recipient's rights to further benefits under this Act.
Section 12. (a) State Employment Service:--The Delaware State Employment Service is hereby transferred to the commission as a division thereof which shall establish and maintain free public employment offices in such number and in such places as may be necessary for the proper administration of this Act and for the purpose of performing such duties as are within the purview of the Act of Congress entitled "An Act to provide for the establishment of a national employment system and for co-operation with the States in promotion of such system, and for other purposes", approved June .6, 1933 (48 Stat. 113; U. S. C., title 29 Sec. 49 c) as amended. The said division shall be administered by a full-time salaried director. It shall be the duty of the commission to cooperate with any official or agency of the United States having powers or duties under the provisions of the said Act of Congress, as amended, and to do and perform all things necessary to secure to this State the benefits of the said Act of Congress, as amended, in the promotion and maintenance of a system of public employment offices. The commission is hereby designated and constituted the agency of this State for the purposes of said Act. All records and property of the Delaware State Employment Service shall become the records and property of the division and all persons employed in such service shall become employees of the division in similar capacity subject to the power of the commission to change or make new appointments in accordance with the regulations prescribed by this Act and the director of the United States Employment Service.
(b) Financing:--All moneys received by this State under the said Act of Congress, as amended, shall be paid into the special "employment service account" in the unemployment compensation administration fund, and said moneys are hereby made available to the commission for the Delaware State Employment Service, to be expended as provided by this section and by said Act of Congress. For the purpose of establishing and maintaining free public employment offices, the commission is authorized to enter into agreements with any political subdivision of this State or with any private, non-profit organization, and as a part of any such agreement the commission may accept moneys, services, or quarters as a contribution to the employment service account.
UNEMPLOYMENT COMPENSATION ADMINISTRATION FUND
Section 13. (a) Special Fund:--There is hereby created in the State treasury a special fund to be known as the unemployment compensation administration fund. All moneys which are deposited or paid into this fund are hereby appropriated and made available to the commission. All moneys in this fund shall be expended solely for the purpose of defraying the cost of the administration of this Act, and for no other purpose whatsoever. The fund shall consist of all moneys appropriated by this State, and all moneys received from the United States of America, or any agency thereof, including the Social Security Board and the United States Employment Service, or from any other source, for such purpose. All moneys in this fund shall be deposited, administered, and disbursed, in the same manner and under the same conditions and requirements as is provided by law for other special funds in the State treasury. Any balances in this fund shall not lapse at any time, but shall be continuously available to the commission for expenditure consistent with this Act. The State Treasurer shall give a separate and additional bond conditioned upon the faithful performance of his duties in connection with the unemployment compensation administration fund in an amount to be fixed by the commission and in a form prescribed by law and approved by the Attorney General. The premiums for such bond and the premiums for the bond given by the treasurer of the unemployment compensation fund under section 9 of this Act shall be paid from the moneys in the unemployment compensation administration fund.
(b) Employment Service Account:--A special "employment service account" shall be maintained as a part of the unemployment compensation administration fund for the purpose of maintaining the public employment offices established pursuant to section 12 of this Act and for the purpose of cooperating with the United States Employment Service. There shall be transferred into this account all moneys heretofore appropriated to the Delaware State Employment Service. In addition, there shall be paid into such account all moneys hereinafter appropriated for the purpose of maintaining public employment offices in this State, moneys designated in section 12 (b) of this Act, and such moneys as are apportioned for the purposes of this account from any moneys received by this State under Title III of the Social Security Act, as amended.
COLLECTION OF CONTRIBUTIONS
Section 14. (a) Interest on Past-Due Contributions:--Contributions unpaid on the date on which they are due and payable, as prescribed by the commission, shall bear interest at the rate of one-half per centum per month from and after such date until payment plus accrued interest is received by the commission. Interest collected pursuant to this subsection shall be paid into the unemployment compensation fund.
(b) Collection:--If, after due notice, any employer defaults in any payment of contributions or interest thereon, the amount due shall be collected by civil action in the name of the commission, and the employer adjudged in default shall pay the costs of such action. Civil actions brought under this section to collect contributions or interest thereon from an employer shall be heard by the court at the earliest possible date and shall be entitled to preference upon the calendar of the court over all other civil actions except petitions for judicial review under this Act and cases arising under the workmen's compensation law of this State.
(c) Priorities Under Legal Dissolutions or Distributions:--In the event of any distribution of an employer's assets pursuant to an order of any court under the laws of this State, including any receivership, assignment for benefits of creditors, adjudicated insolvency, composition, or similar proceeding, contributions then or thereafter due shall be paid in full prior to all other claims except taxes and claims for wages of not more than $250 to each claimant, earned within six months of the commencement of the proceeding. In the event of an employer's adjustification in bankruptcy, judicially confirmed extension proposal, or composition, under the Federal Bankruptcy Act of 1898, as amended, contributions then or thereafter due shall be entitled to such priority as is provided in section 64 (b) of that Act (U. S. C.. title 11, sec. 104 (b)), as amended.
(d) Refunds:--If not later than one year after the date on which any contributions or interest thereon became due, an employer who has paid such contributions or interest thereon shall make application for an adjustment thereof in connection with subsequent contribution payments, or for a refund thereof because such adjustment cannot be made, and the commission shall determine that such contributions or interest or any portion thereof was erroneously collected, the commission shall allow such employer to make an adjustment thereof, without interest, in connection with subsequent contribution payments by him, or if such adjustment cannot be made the commission shall refund said amount, without interest, from the fund. For like cause and within the same period, adjustment or refund may be so made on the commission's own initiative.
PROTECTION OF RIGHTS AND BENEFITS
Section 15. (a) Waiver of Rights Void:--Any agreement by an individual to waive, release or commute his rights to benefits or any other rights under this Act shall be void. Any agreement by any individual in the employ of any person or concern to pay all or any portion of an employer's contributions, required under this Act from such employer, shall be void. No employer shall directly or indirectly make or require or accept any deduction from wages to finance the employer's contributions required from him, or require or accept any waiver of any right hereunder by any individual in his employ. Any employer or officer or agent of an employer who violates any provision of this subsection shall, for each offense, be fined not less than $20.00 nor more than $200.00 or be imprisoned for not more than ninety days, or both.
(b) Limitation of Fees:--No employer or individual claiming benefits shall be charged fees of any kind in any proceeding under this Act by the commission or its representatives. No individual claiming benefits shall be charged fees of any kind in any proceeding under this Act by any court or any officer thereof. Any individual claiming benefits in any proceeding before the commission or its representatives or a court may be represented by counsel or other duly authorized agent; but no such counsel or agents shall either charge or receive for such services more than an amount approved by the commission. Any person who violates any provision of this subsection shall, for each such offense, be fined not less than $20.00 nor more than $200.00 or imprisoned for not more than ninety days, or both.
(c) No Assignment of Benefits; Exemptions:--Any assignment, pledge, or encumbrance of any right to benefits which are or may become due or payable under this Act shall be void; and such rights to benefits shall be exempt from levy, execution, attachment, or any other remedy whatsoever provided for the collection of debt; and benefits received by any individual, so long as they are not mingled with other funds of the recipient, shall be exempt from any remedy whatsoever for the collection of all debts except debts incurred for necessaries furnished to such individual or his spouse or dependents during the time when such individual was unemployed. Any waiver of any exemption provided for in this subsection shall be void.
Section 16. (a) Whoever makes a false statement or representation knowing it to be false or knowingly fails to disclose a material fact, to obtain or increase any benefit or for any other person, shall be punished by a fine of not less than $20 nor more than $50, or by imprisonment for not longer than ninety days, or by both such fine and imprisonment; and each such false statement or representation or failure to disclose a material fact shall constitute a separate offense.
(d) Any employing unit or any officer or agent of an employing unit or any other person who makes a false statement or representation knowing it to be false, or who knowingly fails to disclose a material fact, to prevent or reduce the payment of benefits to any individual entitled thereto, or to avoid becoming or remaining subject hereto or to avoid or reduce any contribution or other payment required from an employing unit under this Act or who willfully fails or refuses to make any such contributions or other payment or to furnish any reports required hereunder or to produce or permit the inspection or copying of records as required hereunder, shall be punished by a fine of not less than $20 nor more than $200, or by imprisonment for not longer than sixty days, or by both such fine and imprisonment; and each such false statement or representation or failure to disclose a material fact, and each day of such failure or refusal shall constitute a separate offense.
(e) Any person who shall willfully violate any provision of this Act or any order, rule, or regulation thereunder, the violation of which is made unlawful or the observance of which is required under the terms of this Act, and for which a penalty is neither prescribed herein nor provided by any other applicable statute, shall be punished by a fine of not less than $20 nor more than $200, or by imprisonment for not longer than sixty days, or by both such fine and imprisonment, and each day such violation continues shall be deemed to be a separate offense.
(d) Any person who, by reason of the nondisclosure or misrepresentation by him or by another, of a material fact (irrespective of whether such nondisclosure or misrepresentation was known or fraudulent) has received any sum as benefits under this Act while any conditions for the receipt of benefits imposed by this Act were not fulfilled in his case, or while he was disqualified from receiving benefits, shall, in the discretion of the commission, either be liable to have such sum deducted from any future benefits payable to him under this Act or shall be liable to repay to the commission for the unemployment compensation fund, a sum equal to the amount so received by him, and such sum shall be collectible in the manner provided in section 14 (b) of this Act for the collection of past-due contributions.
REPRESENTATION IN COURT
Section 17. (a) In any civil action to enforce the provisions of this Act the commission and the State may be represented by any qualified attorney who is employed by the commission and is designated by him for this purpose or at the commission's request by the Attorney General.
(b) All criminal actions for violation of any provision of this Act, or of any rules or regulations issued pursuant thereto, shall be prosecuted by the Attorney General of the State; or, at his direction, by one of his deputies.
Section 18. The commission is hereby authorized to enter into arrangements with the appropriate agencies of other States or the Federal Government whereby individuals performing services in this and other States for a single employing unit under circumstances not specifically provided for in section 2 (i) of this Act, or under similar provisions in the unemployment compensation laws of such other States, shall be deemed to be engaged in employment performed entirely within this State or within one of such other States and whereby potential rights to benefits accumulated under the unemployment compensation laws of several States or under such law of the Federal Government or both, may constitute the basis for the payment of benefits through a single appropriate agency under terms which the commission finds will be fair and reasonable as to all affected interests and will not result in any substantial loss to the fund.
Section 19. Whenever in any employment, it is customary to operate only during a regular recurring period or periods of less than 40 weeks in a calendar year, benefits shall be payable only with respect to unemployment occurring in the longest seasonal period or periods of employment which the best practice of such industry or classes of employment will reasonably permit. The commission shall, after investigation and hearing, ascertain and determine or redetermine the longest seasonal period or periods during which by the best practice of the occupation or industry in question operations are conducted. Until such determination by the commission, no employment shall be deemed seasonal. The commission shall prescribe fair and reasonable general rules applicable to seasonal workers for determining the total wages in employment by an employer required to qualify such workers for benefits and the period during which benefits shall be payable to them.
The term "seasonal worker" means an individual who is ordinarily engaged in a seasonal industry and who, during the portion or portions of the year when such industry is not in operation, is ordinarily not engaged in any other work.
Section 20. The legislature reserves the right to amend or repeal all or any part of this Act at any time; and there shall be no vested private right of any kind against such amendment or repeal. All the rights, privileges, or immunities conferred by this Act or by acts done pursuant thereto shall exist subject to the power of the legislature to amend or repeal this Act at any time.
SEPARABILITY OF PROVISIONS
Section 21. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of this Act, and the application of such provision to other persons or circumstances, shall not be affected thereby.
Section 22. This Act is enacted as part of a national plan of Social Security in conformity to the Federal Social Security Act (Public No. 271-74th Congress), and shall become effective on approval by the Governor. In the event that the tax levied under Section 901 of said Federal Social Security Act, against which contributions under this Act may be credited, shall be amended or repealed by Congress or declared unconstitutional by the Supreme Court of the United States, with the result that no portion of the contributions required under this Act may be credited against such Federal tax, the provisions of this Act, except those of this Section and except as herein otherwise provided, shall become inoperative. Thereupon all assets standing to the credit of this State in the Unemployment Trust Fund in the United States Treasury shall be promptly requisitioned by the Unemployment Compensation Commission, which is hereby granted continuing authority for the purposes of this Section, and together with all assets in the Unemployment Compensation Fund, shall be refunded to persons required to pay contributions under this Act in accordance with the regulations prescribed by the Commission. Any interest or earnings of the Fund, and any fines or penalties collected pursuant to this Act shall be available to the Commission to pay for the costs of making refunds pursuant to the Section. In the case of the Unemployment Compensation Administration Fund, any monies therein received from the Federal Social Security Board shall thereafter be dealt with by the Treasurer of the State of Delaware in accordance with the regulations of said Board and the conditions of the grant to the State of Delaware by said Board; any assets in the Unemployment Compensation Administration Fund which have been received by the State of Delaware from the United States Employment Service or which have been appropriated by the General Assembly for the Delaware State Employment Service shall remain available to the Delaware State Employment Service, which service shall continue in existence as if this Act had not been enacted. The same action shall be taken with respect to assets in the Unemployment Compensation Fund, the Unemployment Trust Fund, and the Unemployment Compensation Administration Fund in the event that this Act shall be repealed by the General Assembly or finally declared invalid by the Supreme Court of the State of Delaware or by the Supreme Court of the United States.
NON-LIABILITY OF STATE
Section 23. Benefits shall be deemed to be due and payable under this Act only to the extent provided in this Act and to the extent that moneys are available therefor to the credit of the unemployment compensation fund and neither the State nor the Commission shall be liable for any amount in excess of such sums.
Approved April 30, 1937.