BILL ANALYSIS                                                                                                                                                                                                    






                 Senate Committee on Labor and Industrial Relations
                               Mark DeSaulnier, Chair

          Date of Hearing: June 23, 2010               2009-2010 Regular  
          Session                              
          Consultant: Gideon L. Baum                   Fiscal:Yes
                                                       Urgency: No
          
                                  Bill No: AB 2538
                                   Author: Niello
                         Version: As Amended April 28, 2010
          

                                       SUBJECT
          
           Unemployment insurance: eligibility for benefits: notification.


                                      KEY ISSUE

          Should the Legislature remove the requirement that the  
          Employment Development Department to pay all Disability  
          Insurance benefits by check, as well as clean-up out-of-date  
          statute in the Unemployment Insurance Code?
          

                                       PURPOSE
          
          To allow the Employment Development Department to contract with  
          a vendor to deliver Disability Insurance benefits through direct  
          deposit and debit card, as well as to remove and clarify certain  
          dated sections of the Unemployment Insurance Code.


                                      ANALYSIS
          
           Existing law:

              a)   Authorizes the Director of EDD to collect delinquent tax  
               contributions or penalties from a person or an employing  
               unit no later than three years after these taxes or  
               penalties become delinquent by levy served personally or by  
                certified mail  to any person who has possession of any  
               personal property belonging to the delinquent person or  
               employing unit. 










             b)   Specifies that if the levy is made on a deposit or  
               personal property in the possession or control of a bank or  
               savings and loan association, the notice of levy shall be  
               delivered or mailed to the branch or office of the bank or  
               savings and loan association at which the deposit or  
               personal property is held.

             c)   Specifies that the place of trial for violations of the  
               laws governing the Unemployment Insurance (UI) Program and  
               the Disability Insurance (DI) Program shall be the county  
               of residence or principal place of business of the  
               defendant.  

             d)   References obsolete provisions in two sections of law  
               that formerly established eligibility and benefit levels in  
               the DI Program when a person completed a vocational  
               rehabilitation plan, received a maintenance allowance, or  
               received permanent disability indemnity under the workers'  
               compensation system. 

             e)   Requires the Director of EDD to deposit moneys from the  
               Disability Fund into a bank or public depository in order  
               to pay DI benefits  by checks drawn on a disability benefit  
               payment account. 


          This Bill:

              1)   Authorizes the Director of EDD to collect delinquent tax  
               contributions or penalties from a person or an employing  
               unit by levy served personally or  by first-class mail  to  
               any person who has possession of any personal property  
               belonging to the delinquent person or employing unit.

             2)   Specifies that if the levy is made on a deposit or  
               personal property in the possession or control of a bank or  
               savings and loan association, the notice of levy shall be  
               delivered or mailed to the centralized processing unit or  
               location designated by that bank or savings and loan  
               association where the credits or other property are held.  

             3)   Authorizes EDD to serve notice to an "address" for any  
          Hearing Date:  June 23, 2010                             AB 2538  
          Consultant: Gideon L. Baum                               Page 2

          Senate Committee on Labor and Industrial Relations 
          








               bank or savings and loan by means of magnetic media,  
               electronic transmission, or other electronic technology.   
               "Address" is defined as a telephone or modem number,  
               facsimile machine, or any other reference number designated  
               by the bank or savings and loan to receive data by  
               electronic means.  

             4)   Specifies that the place of trial for violations of the  
               laws governing the Unemployment Insurance (UI) Program and  
               the Disability Insurance (DI) Program can also occur in any  
               county where the defendant was transacting business that  
               resulted in the alleged violations.  

             5)   Repeals obsolete references in two sections of law that  
               formerly determined eligibility for, and the amount of, DI  
               benefits in connection with people who were covered under  
               the workers' compensation program.  

              6)   Repeals  the requirement that the Director of EDD  pay DI  
               benefits by checks  drawn on a disability benefit payment  
               account,  allowing for electronic pay cards or other pay  
               methods.  
           


                                      COMMENTS
          
          1.  Need for this bill?

             The sponsor of the bill, the Employment Development Department  
            (EDD), states that AB 2538 will clean up the Unemployment  
            Insurance Code and ensure the proper operation of the  
            Unemployment Insurance Program.  EDD reports that the current  
            process of serving the Notice of Levy  (NOL) personally or by  
            certified mail is time consuming and expensive.  Certified  
            mail costs $3.24 per NOL compared with 44 cents for  
            first-class mail, or minimal cost if sent electronically.

            Current law only allows for the prosecution of violations of  
            the California Unemployment Insurance Code to take place in  
            the county where the defendant resides or conducts business.   
            According to EDD, in 2007 and 2008 prosecutors cited  
          Hearing Date:  June 23, 2010                             AB 2538  
          Consultant: Gideon L. Baum                               Page 3

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            limitations in current law as the cause for rejecting several  
            EDD criminal investigative cases.  The suspects in these cases  
            were owners of construction and other businesses who were  
            suspected of payroll tax fraud.  However, their actions took  
            place in counties other than the place of their business.  EDD  
            states that clarifying where prosecutions can take place will  
            aid enforcement action.

            The Unemployment Insurance Code contains outdated references  
            to sections of the Labor Code that formerly determined  
            eligibility for, and the amount of, DI benefits to claimants  
            that had been eligible for benefits under the workers'  
            compensation system.  Removal of these sections will clean-up  
            the Unemployment Insurance Code.

            Finally, EDD currently issues Unemployment Insurance (UI) and  
            Disability Insurance (DI) benefits to eligible claimants by  
            check.  However, it is more expensive to issue individual  
            checks to claimants than the use of electronic payments such  
            as direct deposit.  Current law already provides the  
            flexibility to modernize UI benefit delivery, but requires  
            checks for DI benefit delivery.  This bill would allow  
            electronic benefit delivery for DI benefits.


          2.  Electronic Benefit Delivery and the Bank of America Contract:  
           
             Earlier this month, EDD selected Bank of America (BOA) as its  
            vendor for the electronic delivery of Unemployment Insurance  
            (UI), Disability Insurance (DI), and Paid Family Leave (PFL)  
            benefits, which met or exceeded all of the standards included  
            in AB 2188.  This included BOA charging virtually no fees for  
            use of the debit cards, allowing unlimited ATM withdrawals  
            within the BOA network, cash access at point-of-sale  
            terminals, and use of the debit card wherever Visa is  
            accepted.  Moreover, Bank of America will not charge a fee for  
            the providing this service, but rather make their money  
            through fees paid by businesses that utilize debit cards.   

            Noting that this measure and AB 2188 are virtually identical  
            and share the same goal, the Committee may wish to consider if  
            it makes sense to pass out both measures and risk possible  
          Hearing Date:  June 23, 2010                             AB 2538  
          Consultant: Gideon L. Baum                               Page 4

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            chaptering-out issues which could endanger the Bank of  
            American contract.



          3.  Proponent Arguments  :
            
            The Employment Development Department (EDD) notes that this  
            bill would align the Notice of Levy (NOL) with other state tax  
            agencies such as the Franchise Tax Board and the Board of  
            Equalization which are authorized to send NOL's to financial  
            institutions by first-class mail, or electronic transmission,  
            instead of certified mail.  This bill would enhance EDD's  
            ability to increase collections and decrease costs.  Each  
            year, EDD collects more than $42 billion in payroll taxes,  
            including nearly $35 billion in Personal Income Taxes.

            EDD also argues that amending current law to allow for greater  
            flexibility in the location for prosecuting cases would  
            enhance EDD's ability to help law enforcement agencies  
            prosecute cases and recover tax payments due the state.  This  
            bill would assist local district attorneys as cases could be  
            prosecuted in locations where the crime occurred.

            Finally, EDD has negotiated a contract for direct deposit and  
            debit card services in connection with the Unemployment  
            Insurance (UI) Program.  This bill would give EDD the legal  
            authority to also issue DI payments by direct deposit or debit  
            cards.  These would provide eligible claimants with a faster  
            and more convenient way to receive payments, and a more secure  
            and less costly means for EDD to disburse these payments.


          4.  Opponent Arguments  :

            None on file.

          5.  Similar Legislation  :

            AB 2188 (Bradford), which will also be heard today in this  
            committee, also removes the requirement that the Employment  
            Development Department pays all Disability Insurance benefits  
          Hearing Date:  June 23, 2010                             AB 2538  
          Consultant: Gideon L. Baum                               Page 5

          Senate Committee on Labor and Industrial Relations 
          








            with a check.


                                       SUPPORT
          
          The Employment Development Department (Sponsor)
          

                                     OPPOSITION
          
          None on file.

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          Hearing Date:  June 23, 2010                             AB 2538  
          Consultant: Gideon L. Baum                               Page 6

          Senate Committee on Labor and Industrial Relations