California Legislature—2013–14 Regular Session

Assembly Bill No. 1638

Introduced by Assembly Member Bocanegra

February 11, 2014

An act to amend Sections 1142 and 1253.3 of, and to repeal Sections 1451, 1452, 1453, and 1454 of, the Unemployment Insurance Code, relating to unemployment insurance, and making an appropriation therefor.

LEGISLATIVE COUNSEL’S DIGEST

AB 1638, as introduced, Bocanegra. Unemployment insurance: classified employees.

Existing law provides for the payment of unemployment compensation benefits and extended duration benefits to eligible persons who meet specified requirements. Existing law prohibits the payment of unemployment benefits to education employees of a public entity, as defined, including teachers, researchers, and administrators for the period between 2 academic years when there is a reasonable assurance that the employee will perform his or her regular services in the subsequent academic year, except as specified. Existing law similarly prohibits the payment of unemployment benefits to specified education employees of a public entity, other than teachers, researchers, or administrators between 2 academic years, except as specified, but provides a procedure for this 2nd category of educational employees, under certain conditions, to seek payment of retroactive unemployment benefits for the period between 2 academic years. Existing law requires specified notice regarding reasonable assurance of employment in the following academic term be sent to employees before the end of the current academic term. Existing law also authorizes payment of unemployment insurance benefits, using funds from the Department of Education, to the 2nd category of educational employees at specified schools between academic terms in circumstances where benefits would otherwise be denied.

This bill would delete the prohibition on the payment of unemployment benefits to education employees, other than teachers, researchers, and administrators, as specified, between 2 academic years and would make conforming changes, including deleting the requirement for notice of reasonable assurance of employment of these employees and eliminating the provisions for payment of unemployment benefits to these employees at the specified schools.

Because this bill would expand the categories of people who could receive benefits from the Unemployment Insurance Fund, a continuously appropriated fund, it would make an appropriation.

Vote: majority. Appropriation: yes. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1142 of the Unemployment Insurance
Code is amended to read:

1142.  

(a) If the director finds that any employer or any
employee, officer, or agent of any employer, in submitting facts
concerning the termination of a claimant’s employment pursuant
to Section 1030, 1327, 3654, 3701, 4654, or 4701, willfully makes
a false statement or representation or willfully fails to report a
material fact concerning that termination, the director shall assess
a penalty of an amount not less than 2 nor more than 10 times the
weekly benefit amount of that claimant. The director shall assess
this penalty in the following manner:

(1) If the director finds that the employer was at fault for
willfully making a false statement or representation or willfully
failing to report a material fact concerning that termination, the
director shall assess the penalty against the employer.

(2) If the director finds that the agent of the employer was at
fault for willfully making a false statement or representation or
willfully failing to report a material fact concerning that
termination, the director shall assess the penalty against the agent
of the employer.

(3) If the director finds that the employer and the agent of the
employer were both at fault for willfully making a false statement
or representation or willfully failing to report a material fact
concerning that termination, the director shall assess the penalty
against the employer and also shall assess another penalty against
the agent of the employer.

(b) If the director finds that any employer or any employee,
officer, or agent of any employer, in submitting a written statement
concerning the reasonable assurance, as defined in subdivision begin delete (g) end delete
begin insert (f) end insert of Section 1253.3, of a claimant’s reemployment, as required
by begin delete subdivisions (b), (c), and (i) end delete begin insert subdivision (b) end insert of Section 1253.3,
willfully makes a false statement or representation or willfully
fails to report a material fact concerning the reasonable assurance
of that reemployment, the director shall assess a penalty of an
amount not less than 2 nor more than 10 times the weekly benefit
amount of that claimant. The director shall assess this penalty in
the following manner:

(1) If the director finds that the employer was at fault for
willfully making a false statement or representation or willfully
failing to report a material fact concerning the reasonable assurance
of that reemployment, the director shall assess the penalty against
the employer.

(2) If the director finds that the agent of the employer was at
fault for willfully making a false statement or representation or
willfully failing to report a material fact concerning the reasonable
assurance of that reemployment, the director shall assess the
penalty against the agent of the employer.

(3) If the director finds that the employer and the agent of the
employer were both at fault for willfully making a false statement
or representation or willfully failing to report a material fact
concerning the reasonable assurance of that reemployment, the
director shall assess the penalty against the employer and also shall
assess another penalty against the agent of the employer.

(c) (1) This article, Article 9 (commencing with Section 1176)
of this chapter with respect to refunds, and Chapter 7 (commencing
with Section 1701) of this part with respect to collections shall
apply to the assessments provided by this section. Penalties
collected under this section shall be deposited in the contingent
fund.

(2) Notwithstanding Section 1586, additional penalties that are
assessed against an agent of the employer and collected pursuant
to paragraph (3) of subdivision (a) and paragraph (3) of subdivision
(b) shall be available for the purposes specified in Section 1586
upon appropriation by the Legislature for those purposes.

SEC. 2.  

Section 1253.3 of the Unemployment Insurance Code
is amended to read:

1253.3.  

(a) Notwithstanding any other provision of this
division, unemployment compensation benefits, extended duration
benefits, and federal-state extended benefits are payable on the
basis of service to which Section 3309(a)(1) of the Internal
Revenue Code begin delete of 1954 end delete applies, in the same amount, on the same
terms, and subject to the same conditions as benefits payable on
the basis of other service subject to this division, except as provided
by this section.

(b) Benefits specified by subdivision (a) based on service
performed in the employ of a nonprofit organization, or of any
entity as defined by Section 605, with respect to service in an
instructional, research, or principal administrative capacity for an
educational institution are not payable to any individual with
respect to any week which begins during the period between two
successive academic years or terms or, when an agreement provides
instead for a similar period between two regular but not successive
terms, during that period, or during a period of paid sabbatical
leave provided for in the individual’s contract, if the individual
performs services in the first of the academic years or terms and
if there is a contract or a reasonable assurance that the individual
will perform services for any educational institution in the second
of the academic years or terms.

begin delete

(c) Benefits specified by subdivision (a) based on service
performed in the employ of a nonprofit organization, or of any
entity as defined by Section 605, with respect to service in any
other capacity than specified in subdivision (b) for an educational
institution shall not be payable to any individual with respect to
any week which commences during a period between two
successive academic years or terms if the individual performs the
service in the first of the academic years or terms and there is a
reasonable assurance that the individual will perform the service
in the second of the academic years or terms. However, if the
individual was not offered an opportunity to perform the services
for an educational institution for the second of the academic years
or terms, the individual shall be entitled to a retroactive payment
of benefits for each week for which the individual filed a timely
claim for benefits and for which benefits were denied solely by
reason of this subdivision. Retroactive benefits shall be claimed
in accordance with the department’s procedures which shall specify
that except where the individual was entitled to benefits based on
services performed for other than an educational institution, an
individual who has a reasonable assurance of reemployment may
satisfy the search for work requirement of subdivision (e) of
Section 1253, by registering for work pursuant to subdivision (b)
of Section 1253 during the period between the first and second
academic terms or years. A claim for retroactive benefits may be
made no later than 30 days following the commencement of the
second academic year or term.

end delete begin delete

(d)

end delete

begin insert (c) end insert  Benefits specified by subdivision (a) based on service
performed in the employ of a nonprofit organization, or of any
entity as defined by Section 605, with respect to services specified
by subdivision begin delete (b) or (c), end delete begin insert (b) end insert are not payable to any individual with
respect to any week that commences during an established and
customary vacation period or holiday recess if the individual
performs the begin insert specified end insert services in the begin delete period end delete begin insert week end insert immediately
before the vacation period or holiday recess, and there is a
reasonable assurance that the individual will perform the begin insert specified end insert
services in the begin delete period end delete begin insert week end insert immediately following the vacation
period or holiday recess.

begin delete

(e)

end delete

begin insert (d) end insert  With respect to any services specified by subdivision begin delete (b) or
(c), end delete begin insert (b) end insert compensation payable on the basis of services in that
capacity may be denied as specified in subdivision begin delete (b), (c), or (d) end delete
begin insert (b) or (c) end insert to any individual who performed the services in an
educational institution while in the employ of an educational
service agency, and for this purpose the term “educational service
agency” begin delete means end delete begin insert is defined as end insert a governmental agency or
governmental entity that is established and operated exclusively
for the purpose of providing the services to one or more educational
institutions.

begin delete

(f)

end delete

begin insert (e) end insert  Benefits specified by subdivision (a) based on service
performed in the employ of a nonprofit organization, or of any
entity as defined by Section 605, begin insert with respect to services specified
by subdivision (b), end insert are not payable during the periods of time, and
subject to the same conditions, contained in subdivisions (b), (c),
begin delete (d), and (h), end delete begin insert and (g), end insert if the services are provided to, or on behalf
of, an educational institution.

begin delete

(g)

end delete

begin insert (f) end insert  For purposes of this section, “reasonable assurance” includes,
but is not limited to, an offer of employment or assignment made
by the educational institution, provided that the offer or assignment
is not contingent on enrollment, funding, or program changes. An
individual who has begin delete been notified end delete begin insert received notice end insert that he or she
will be replaced and begin insert who end insert does not have an offer of employment
or assignment to perform services for an educational institution is
not considered to have reasonable assurance.

begin delete

(h)

end delete

begin insert (g) end insert  For purposes of this section, if the time for service performed
during the period of and pursuant to any contract for any academic
year or term by an individual for any employing unit as specified
in subdivision (b) begin delete or (c) end delete constitutes one-half or more of the time
in total service performed for the employing unit by the individual
during that same period for remuneration, all the services of the
individual for the employing unit for that period shall be deemed
subject to the benefit payment restriction provisions of this section.

begin delete

(i) Any entity as defined by Section 605, with respect to any
individual performing a service in any other capacity other than
specified in subdivision (b) for an educational institution, shall
provide a written statement indicating the following to the
individual no later than 30 days before the end of the first of the
academic years or terms:

end delete begin delete

(1) Whether or not there is a reasonable assurance of
reemployment.

end delete begin delete

(2) Whether or not it is stated that the individual has no
reasonable assurance of reemployment, that the individual should
file a claim for benefits at the close of the academic year or term.

end delete begin delete

(3) If it is stated that the individual has reasonable assurance of
reemployment, the written statement shall also inform the employee
that he or she may file a claim for benefits and that the
determination for eligibility for benefits is made by the
Employment Development Department and not by the employer.

end delete begin delete

(4) If it is stated that the individual has reasonable assurance of
reemployment, that the individual shall be entitled to a retroactive
payment of benefits if the individual is not offered an opportunity
to perform the services for the educational institution for the second
of the academic years or terms, if the individual is otherwise
eligible and he or she filed a claim for each week benefits are
claimed, and if a claim for retroactive benefits is made no later
than 30 days following the commencement of the second academic
year or term.

end delete

SEC. 3.  

Section 1451 of the Unemployment Insurance Code
is repealed.

begin delete

1451.  

Nonprofessional employees of the Fremont and Riverside
campuses of the California School for the Deaf, the Fremont
campus of the California School for the Blind, and the diagnostic
schools for individuals with neurological disabilities located in
Los Angeles, San Francisco, and Fresno, shall be eligible for
benefits provided by this chapter, on the same terms and conditions
as are specified by this part, Part 3 (commencing with Section
3501), and Part 4 (commencing with Section 4001), for all other
individuals, except where inconsistent with the provisions of this
chapter. Except where inconsistent with the provisions of this
chapter, the provisions of this division and authorized regulations
shall apply to any matter arising pursuant to this chapter.

end delete

SEC. 4.  

Section 1452 of the Unemployment Insurance Code
is repealed.

begin delete

1452.  

Notwithstanding Section 1253.3, between terms
unemployment compensation benefits are payable by the
Controller, from funds appropriated for support of the State
Department of Education and allocated to the state special schools,
upon authorization by the Employment Development Department
to individuals who are eligible to receive these benefits under this
chapter. These benefits shall only be paid for weeks of
unemployment occurring between school terms and during an
established and customary vacation period or holiday recess when
other benefits are denied solely by reason of Section 1253.3.

end delete

SEC. 5.  

Section 1453 of the Unemployment Insurance Code
is repealed.

begin delete

1453.  

(a) There shall be transferred to the Employment
Development Department from funds appropriated for support of
the State Department of Education and allocated to the state special
schools, at the times and in the manner provided in subdivision
(b), an amount equal to the additional cost to the Employment
Development Department for added administrative work arising
out of this chapter.

(b) The director shall determine the sums he or she estimates
the department will be entitled to receive from the State Department
of Education under this section for each fiscal year, reduced or
increased by any sum by which he or she finds that his or her
estimates for any prior fiscal year were greater or less than the
amounts which were actually required. The sum of the amounts
transferred or expended pursuant to Section 1452, subdivision (a),
and this subdivision in any one fiscal year shall not exceed the
amount appropriated in the then current fiscal year to the State
Department of Education for the purposes of this chapter.

(c) The director may require from the State Department of
Education such employment, wage, financial, statistical, or other
information and reports, properly verified, as may be deemed
necessary by the director to carry out his or her duties under this
division, which shall be filed with the director at the time and in
the manner prescribed by him or her.

(d) The director may tabulate and publish information obtained
pursuant to this chapter in statistical form and may divulge the
name of the employing unit.

(e) The State Department of Education shall provide each
employee subject to this chapter, at the end of each school term,
with written information advising the employee of benefit rights
pursuant to this chapter.

end delete

SEC. 6.  

Section 1454 of the Unemployment Insurance Code
is repealed.

begin delete

1454.  

An individual who receives any unemployment
compensation benefits otherwise payable irrespective of this
chapter, including retroactive unemployment compensation benefits
paid pursuant to subdivision (c) of Section 1253.3, who has
received benefits under this chapter for the same period, shall be
liable for repayment to the state of the amount of benefits paid
under this chapter for that period.

end delete