Amended in Assembly April 21, 2014

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, begin delete 1453, and 1454 end delete begin insert and 1453 end insert of, the Unemployment Insurance Code, relating to unemployment insurance, and making an appropriation therefor.

LEGISLATIVE COUNSEL’S DIGEST

AB 1638, as amended, 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 begin delete employees, end delete begin insert employees of a public school, end insert other than teachers, researchers, and administrators, as specified, between 2 academic years and would make conforming changes, including begin delete deleting the requirement for notice of reasonable assurance of employment of these employees and end delete 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 (f) end delete
begin insert (s) end insert of Section 1253.3, of a claimant’s reemployment, as required
by begin delete subdivision (b) end delete begin insert subdivisions (b), (c), and (i) 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.

begin delete

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 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.

(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 services specified
by subdivision (b) 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
specified services in the week immediately before the vacation
period or holiday recess, and there is a reasonable assurance that
the individual will perform the specified services in the week
immediately following the vacation period or holiday recess.

(d) With respect to any services specified by subdivision (b)
compensation payable on the basis of services in that capacity may
be denied as specified in subdivision (b) or (c) 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” is defined as 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.

(e) 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 (b), are not payable during the periods of time, and
subject to the same conditions, contained in subdivisions (b), (c),
and (g), if the services are provided to, or on behalf of, an
educational institution.

(f) 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 received notice that he or she will be replaced
and who does not have an offer of employment or assignment to
perform services for an educational institution is not considered
to have reasonable assurance.

(g) 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) 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.

end delete

begin insert

begin insert SEC. 2. end insert   

end insert

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

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.

(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, begin insert except for a public school as
defined in Section 22161 of the Education Code, end insert 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.

(d) 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 (b) or (c), 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 services
in the period immediately following the vacation period or holiday
recess.

(e) With respect to any services specified by subdivision (b) or
(c), compensation payable on the basis of services in that capacity
may be denied as specified in subdivision (b), (c), or (d) 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.

(f) 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, are not payable during the periods
of time, and subject to the same conditions, contained in
subdivisions (b), (c), (d), and (h), if the services are provided to,
or on behalf of, an educational institution.

(g) 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 been notified that he or she will be replaced
and does not have an offer of employment or assignment to perform
services for an educational institution is not considered to have
reasonable assurance.

(h) 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) or (c) 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.

(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:

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

(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.

(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.

(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.

SEC. 3.  

Section 1451 of the Unemployment Insurance Code
is repealed.

SEC. 4.  

Section 1452 of the Unemployment Insurance Code
is repealed.

SEC. 5.  

Section 1453 of the Unemployment Insurance Code
is repealed.

begin delete

SEC. 6.  

Section 1454 of the Unemployment Insurance Code is
repealed.

end delete