CHAPTER 115

RELATING TO UNEMPLOYMENT COMPENSATION

AN ACT TO AMEND TITLE 19, DELAWARE CODE, RELATING TO UNEMPLOYMENT COMPENSATION: TO MODIFY DEFINITION OF "EMPLOYER", TO CHANGE DEFINITION OF "EMPLOYING UNIT", TO DEFINE "WORK", TO PROVIDE BENEFITS IN CASE OF ILLNESS OR DISABILITY UNDER CERTAIN CONDITIONS, TO CHANGE CERTAIN DISQUALIFICATIONS FOR BENEFITS, TO CHANGE PROVISIONS RELATING TO VARIATIONS FROM THE STANDARD TAX RATE, TO PROVIDE FOR ORDER OF CREDITING EMPLOYER CONTRIBUTION PAYMENTS AND TO PROVIDE FOR JEOPARDY ASSESSMENTS.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. § 3302 (8) (G), Title 19, Delaware Code, is amended to read as follows:

(8) (G). Although not an employer by reason of any other paragraph of this subsection, for which within either the current or preceding calendar year service in employment is or was performed with respect to which such employing unit is liable for any Federal tax against which credit may be taken for contributions required to be paid into a State unemployment fund.

Section 2. § 3302 (9), Title 19, Delaware Code, is amended to read as follows :

(9) (A) "Employing Unit" means any individual or type or 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 chapter.

(B) 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, such employing unit shall for all the purposes of this chapter 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 and shall be liable for the employer contributions with respect to wages paid to such individuals by such contractor or subcontractor, except that any employing unit which becomes liable for and pays contributions with respect to individuals in the employ of any such contractor or subcontractor 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 chapter, whether such individual was hired or paid directly by such employing unit or by such agent or employee, providing the employing unit had actual or constructive knowledge of the work.

Section 3. § 3302, Title 19, Delaware Code, is amended by adding at the end thereof a new subsection designated (19), as follows:

(19). "Work" means service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied.

Section 4. § 3314 (3), Title 19, Delaware Code, is amended by substituting a comma for the semi-colon at the end thereof and adding the following additional phrase:

but no claimant shall be considered ineligible in any week of unemployment for failure to comply with this subsection

(3) if such failure is due to an illness or disability which occurs after he has registered for work and no work which would have been considerable suitable at the time of his initial registration has been offered after the beginning of such illness or disability. The Commission shall require the submission of a doctor's cert. fieate to establish the existence of such illness or disability, and thereafter the Commission shall require a doctor's certificate not less than once every four weeks to establish any continuation of such illness or disability.

Section 5. § 3315 (1) and (2), Title 19, Delaware Code, are amended to read as follows :

(1). For the period of unemployment next ensuing after he has left his work voluntarily without good cause attributable to such work. However, if an individual has left his work involuntarily because of illness, no disqualification shall prevail after he becomes able to work and available for work and meets all other requirements under this title, but the Commission shall require a doctor's certificate to establish such availability. Benefit wages related to wage credits earned in such work voluntarily left, if employment under this title, shall not be considered in determining the future contribution rate of any individual employer under sections 3349-3356 of this title.

(2). For the period of unemployment next ensuing after an individual has been discharged from his work for just cause in connection with his work. Benefit wages related to wage credits earned in such work, if employment under this title, shall not be considered in determining the future contribution rate of any individual employer under sections 3349-3356 of this title.

Section 6. § 3315, Title 19, Delaware Code, is amended by adding a subsection known as Section 3315 (9), as follows :

(9). If it shall be determined by the Commission, that total or partial unemployment is due to pregnancy, but, in any event, no woman shall be eligible to receive benefits within 8 weeks before expected childbirth and within 6 weeks after the date of childbirth, and the Commission may require a doctor's certificate to establish such dates.

Section 7. § 3349, Title 19, Delaware Code, is amended to read as follows:

§ 3349. General limitations on reduction of standard rate

(a). For the purpose of this section :

(1) "Computation date" means October first of any year.

(2) "Experience year" means the four consecutive calendar quarter periods beginning on October 1 of any year and ending on September 30 of the following year.

(b). No employer's rate shall be reduced below the standard rate for any calendar year unless and until he has had employment in each of the four consecutive experience years immediately preceding the computation date, and no employer shall be eligible for a reduced rate if he has reported no employment for five or more consecutive calendar quarters in such four experience years.

(c). No employer's rate shall be less than the standard rate for any calendar year unless the balance to the credit of this State in the fund as of September 30 of the preceding calendar year shall have been equal to or in excess of the highest amount of benefits paid in any previous completed calendar year.

Section 8. § 3350, Title 19, Delaware Code, is amended by striking out § 3350, up to and including subsection (4) thereof, and by inserting instead the following:

§ 3350. Variations from standard rate

Prior to the calendar year 1954, each employer's rate for any calendar year shall be determined on the basis of his record as of December 31 of the preceding calendar year. For the year 1954 and each calendar year thereafter, each employer's rate for any calendar year shall be determined on the basis of his record as of September 30 of the preceding calendar year.

Variations from the standard rate of contributions shall be determined in accordance with the following requirements :

(1). When, in any benefit year, an employee is first paid benefits for total or partial unemployment, his wages during his base period shall be termed the "employee's benefit wages", and shall be treated, for the purposes of this subsection, as though they had been earned in the experience year in which such first benefit is paid. Wages paid by any individual employer to an employee during the first 90 days such employee is in employment for him shall not be considered in determining benefit wages if the said employee is rated as "disabled" by the United States Veterans Administration or as "handicapped" by the State Board of Vocational Education.

(2). The "employer's benefit wages" for any experience year shall be the total of the employee benefit wages of all of such employer's employees or former employees.

(1). The "benefit wage ratio" of each employer shall be the percentage obtained by dividing the total of his benefit wages for the most recent three completed experience years by his total payroll subject to contributions for the same three experience years as shown on his contribution reports.

(1). For any calendar year, the "state experience factor" shall be the term used for the total benefits paid from the fund during the most recent three completed experience years, less all amounts credited to the fund in such experience years other than employer's contributions, divided by the total of the benefit wages of all employers during the same three years. In such computation, any fraction shall be adjusted to the nearest multiple of 1%.

Section 9. § 3350 (6), Title 19, Delaware Code, is amended to read as follows :

(6). No employer's rate for the period of 12 months commencing January first of any calendar year shall be less than 2 7/10% unless all contributions due on Wages paid for employment for such employer during pay periods ending prior to

June 30 of the preceding year have been paid by September 30 of such preceding year. If such contributions due are paid after June 30 of the preceding year but prior to or on the last day of any calendar quarter of any calendar year, such employer's contribution rate for contributions on wages paid for employment for such employers during pay periods in the said calendar quarter, and for wages paid for employment for such employer during pay periods in all succeeding calendar quarters in such calendar year, shall be the contribution rate determined for such employer under the provisions of paragraph (5) of this section.

Section 10. The last sentence of § 3350 (7), Title 19, Delaware Code, is amended to read as follows :

In computing an employer's contribution rate for any calendar year, credits may be used only in connection with rehires of claimants whose benefit years ended no later than June 30 of the calendar year immediately preceding.

Section 11. § 3353, Title 19, Delaware Code, is amended to read as follows:

§ 3353. Transfer of experience from predecessor to successor employer

(a). Transfers of employment and benefit wage experience from a predecessor to a successor employer are recognized if there is a substantial continuity of ownership and management by the successor of the business of the predecessor. The successor employer need not have been previously subject to this title in order to obtain such a transfer. No reduced rate will be permitted unless both the predecessor and successor employers have met the requirements of section 3350 (6) if applicable.

(b). When any employer acquires the experience of one or more employers and all employers had identical rates, the employer also acquires for the remainder of the calendar year the contribution rate of the predecessor employer or employers.

(c). When any employer acquires the experience of one or more other employers, and all employers did not have identical rates, the experience of the successor employer and the predecessor employer or employers shall be consolidated for the three experience years immediately preceding the date of transfer, and a new Benefit Wage Ratio computed on the total experience of all such employers. Effective upon the date of transfer, a contribution rate shall be issued which will continue in effect for the remainder of the calendar year. For the succeeding year and thereafter, the Benefit Wage Ratio shall be computed on such consolidated experience.

(d). The Commission shall by regulation prescribe the evidence required to prove that a successor employer may be entitled to the experience of a predecessor employer under this section.

Section 12. Chapter 33 of Title 19, Delaware Code, is amended by adding at the end thereof two new sections to be designated as § 3366 and § 3367, as follows :

§ 3366. Order of crediting payments on account

Any payment on account by an employer on contributions, interest and penalties due shall be credited against the oldest outstanding indebtedness, in the following order: First, penalties; second, interest; third, contributions.

§ 3367. Jeopardy Assessments

If the Executive Director has reason to believe that the collection of any contributions imposed under this title will be jeopardized in any case in which an employer is delinquent in payment of contributions due under this title, or has discontinued or is about to discontinue business in Delaware, or such business is of a temporary or seasonal nature, the Executive Director may require reports of wages of workers and of contributions due, and payment of such contributions, for periods less than calendar quarters, and prior to regular stated due dates.

Approved May 17, 1955.