27-3-409. Payment of benefits upon determination; repayment of overpaid benefits; penalty.
(a) Benefits shall be paid in accordance with a determination, redetermination or decision until modified or reversed by a subsequent or pending redetermination or decision. A proceeding for judicial review under this article shall not operate as a supersedeas or stay nor shall the commission or the court issue an injunction, supersedeas, stay or other writ or process suspending the payment of benefits. Except as provided in W.S. 27-3-506(e), if a determination, redetermination or decision is reversed or modified, an employer's account shall not be charged for benefits paid under an erroneous determination and benefits shall be paid or denied in accordance with the modifying or reversing redetermination or decision.
(b) An individual receiving benefits under this act to which he is not entitled shall be liable for and repay the benefit. Repayment of the benefits shall be had by any combination of recoupment, recovery by civil action, offset through the treasury offset program of the United States treasury, 26 U.S.C. Section 6402(f), or voluntary reimbursement agreement:
(i) The department in its discretion, may recoup the benefit amount liable to be repaid by offsetting, without civil action, against future benefits payable to the individual under this act within five (5) years from the effective date of the claim resulting in the overpayment if the claim was not fraudulent. If the claim resulting in the overpayment was fraudulent, the five (5) year limit on recoupment shall not apply. The department shall waive recoupment if an individual is without fault in receiving the benefits and it defeats the purpose of this act or is against equity and good conscience as considered by the department in accordance with regulations of the commission;
(ii) The department may also recover overpaid benefits from an individual by civil action brought in the name of the department;
(iii) The department in its discretion, without civil action, may accept repayment of overpaid benefits by reimbursement from an individual pursuant to a payment schedule approved by the department.
(c) The department may recoup or recover overpayment of benefits to any individual under another state law if a state certifies to the department the facts involved, the overpaid individual is liable for repayment of benefits and the state requests the department to do so. Repayment either by recoupment or recovery shall be had pursuant to subsection (b) of this section. Repayment shall be equal to the amount of overpayment determined by the requesting state.
(d) Any overpayment of benefits fraudulently received shall be assessed a penalty equal to twenty percent (20%) of the amount of overpayment and an additional five percent (5%) penalty on the remaining unpaid balance at the end of every six (6) months. One-fourth (1/4) of the amounts collected pursuant to the initial penalty and all of the additional penalties shall be paid into the employment security revenue account and the department shall utilize those collected amounts for administrative costs of overpayment collection, fraud investigation, developing and providing educational programs for this act. Three-fourths (3/4) of the amounts collected pursuant to the initial penalty shall be paid into the unemployment trust fund account. Offset shall not be used to recover amounts due under this section.
(e) The department shall cancel the amount of overpayment or penalty due on any overpayment when:
(i) The individual is deceased with no estate or the estate is closed and all assets are distributed; or
(ii) The individual is adjudicated insolvent by a court of competent jurisdiction with no remaining assets.
(f) The department may cancel the amount of overpayments or penalty due on any overpayment after eight (8) years from the effective date of the claim resulting in the overpayment when:
(i) The individual cannot be located;
(ii) The individual is totally unable to work; or
(iii) The department’s records show the individual earned covered wages of less than one-half (1/2) the average weekly wage within Wyoming in the most recent calendar year.
(a) As used in this article:
(i) "Benefit ratio" means the quotient of total benefits charged to an employer's account and paid during the preceding experience period divided by total taxable wages payable by the employer for that experience period excluding any portion of wages for which contributions were not paid as of July 31 of the preceding calendar year;
(ii) "Experience period" means the thirty-six (36) consecutive month period or, in the case of a new employer not previously subject to this act the twenty-four (24) consecutive month period, ending June 30 of the preceding year;
(iii) "Ineffectively charged benefits" means benefits charged to an employer's experience rating account after benefits previously charged to his account qualified him for the maximum rate of contributions;
(iv) "Noncharged benefits" means benefits not charged to an employer's experience rating account pursuant to W.S. 27-3-504(e) and 27-3-608(b);
(v) "Nonprofit organization" means an organization defined by 26 U.S.C. 501(c)(3) and exempt from federal income tax under 26 U.S.C. 501(a);
(vi) "Organization" means a hospital, institution of higher education, this state or any political subdivision, an Indian tribe as defined under section 3306 of the federal Unemployment Tax Act and a group of organizations established pursuant to regulations of the commission for purposes of joint accounts, employing services qualifying as employment under W.S. 27-3-105(a)(i);
(vii) "Client" means any entity that utilizes one (1) or more workers that have been contracted for and supplied by a service supplier. The client has the right to control the manner and means of the workers performing services for it;
(viii) "Service supplier" means any entity that is primarily engaged in the business of contracting with the client to provide one (1) or more workers to perform services for the client and performs all of the following functions:
(A) Assigns the worker to perform services for the client;
(B) Sets the rate of pay of the worker, whether or not through negotiations;
(C) Pays the worker directly;
(D) Retains the authority to assign or refuse to assign a worker to other clients if the worker is unacceptable to a specific client;
(E) Determines assignments of workers even though the worker may retain the right to refuse specific assignments;
(F) Negotiates with the client on matters of time, place, type of work, working conditions, quality and price of the service.
(ix) "Temporary service contractor" means any individual, firm, association, partnership, limited liability company, corporation or other type of organization conducting a business that employs individuals directly for the purpose of furnishing services of the employed individuals on a temporary basis to others. "Temporary service contract" does not include a service supplier as defined in paragraph (viii) of this subsection;
(x) "Temporary worker" means a worker whose services are furnished to another employer on a temporary basis to substitute for a permanent employee on leave or to meet an emergency or short-term workload need. "Temporary worker" does not include a person working for a service supplier as defined in paragraph (viii) of this subsection;
(xi) For purposes of W.S. 27-3-507 and 27-3-706, "person" means an individual or entity, including any partnership, association, trust, estate, corporation, limited liability company, domestic or foreign insurance company or corporation, a receiver, trustee in bankruptcy, trustee, successor or the legal representative of a deceased person.
27-3-502. Determination of employer and employment;
election of coverage; records and reports; injunction; service suppliers.
(a) Upon its own motion or application of an employing unit and after notice and opportunity for hearing, the department may determine if an employing unit is an employer and if services performed for the employing unit qualify as employment. The department shall consider employment occurring during a ten (10) year period preceding the date of employer determination. A determination by the department is final as to the employing unit fifteen (15) days after mailing its findings and determination to the employing unit. The employing unit may appeal a determination in accordance with W.S. 27-3-506.
(b) Except as provided by subsection (d) of this section, an employing unit qualifying as an employer within any year is subject to this act for that entire calendar year.
(c) An employer enumerated under this subsection may apply in writing to the department before January 31 for termination of coverage under this act for that calendar year. The department may waive the application filing requirement for good cause. Employers to which this subsection applies include:
(i) Repealed By Laws 1999, ch. 73, § 3.
(ii) An agricultural employer paying wages of less than twenty thousand dollars ($20,000.00) each quarter during the preceding calendar year or employing less than ten (10) workers on any day of twenty (20) or more different weeks within a calendar year;
(iii) A domestic employer paying wages of less than one thousand dollars ($1,000.00) in each quarter of the preceding calendar year;
(iv) A nonprofit organization paying wages for less than four (4) individuals or for less than twenty (20) weeks in the preceding year.
(d) An employing unit not qualifying as an employer or for which services not qualifying as employment are performed may elect coverage under this act for a period of not less than two (2) years by filing written notice of its election with the department. If the department approves the election in writing, coverage is effective on the date of approval. Application for termination of coverage as an employer under this subsection shall be filed in writing with the department not less than thirty (30) days before January 1 of any year following the initial two (2) years of coverage and for termination of coverage of employment, not less than thirty (30) days after January 1. The department may terminate coverage under this subsection for good cause by giving notice to the employer.
(e) An employing unit shall maintain accurate employment records containing information prescribed by the commission. Records shall be open to inspection by and submitted to the department upon request. An employing unit shall submit reports on employees upon request of the department or an appeal tribunal.
(f) Any employing unit subject to this act shall not commence business or engage in work within this state without registering under this act and otherwise complying with this act. A prime or general contractor subcontracting any part of a contract shall require notification and compliance by any subcontractor under this subsection before awarding a contract or permitting a subcontractor to begin work. The state, a county, municipality or any other political subdivision shall require the prime or general contractor to register and comply with this act before authorizing the contractor to begin work under any public contract. The secretary of state shall report to the department the names and addresses of all business entities registering with that agency during the preceding month. The Wyoming department of transportation and the department of administration and information shall report to the department the names and addresses of business entities awarded a contract by that agency during the preceding month. Any employing unit failing to comply with this subsection or W.S. 27-3-510(c) or (d) or delinquent for filing reports or paying contributions required under this act may be enjoined by the department from engaging or continuing in business subject to this act until required reports are filed or payments are made and the unit otherwise complies with this act. All costs of the action including a reasonable attorney fee shall be paid by the employing unit against which the injunction is sought. In addition to the penalties and remedies provided by W.S. 27-3-510 through 27-3-512 and 27-3-704, the department may assess and collect an additional fee of up to three (3) times the amount of delinquent contributions payable under this act for any employing unit failing to comply with this subsection. This additional fee is part of the payment due for all purposes if an action is instituted under this subsection. If the employing unit is a subcontractor, the general contractor or the project owner may be held liable for payment of the contributions and any additional assessment due.
(g) Notwithstanding any other provisions of this act:
(i) A service supplier is the employing unit of the worker provided to the client and shall be liable to pay the contributions on wages paid by it to the worker performing services for the client;
(ii) If an entity is not a service supplier as defined by W.S. 27-3-501(a)(viii) or if the client pays wages to the worker directly, then the client is the employing unit of the worker and shall be liable to pay the contributions on wages paid by it to the worker performing services for the client;
(iii) Notwithstanding the foregoing, if an entity pays the worker and that entity is not the employing unit of the worker as determined herein, that entity is deemed the agent of the employing unit so determined;
(iv) If the service supplier fails to pay all contributions or submit required reports which are due, then the client shall be jointly and severally liable for those which are attributable to wages for services performed for the client by the worker provided by the service supplier;
(v) The service supplier shall keep separate records, submit a list of all clients to the department on a quarterly basis and submit separate quarterly reports for each client;
(vi) Repealed By Laws 2007, Ch. 177, § 2.
(vii) A temporary service contractor is the employing unit of the temporary worker provided to an employer and shall be liable to pay the contributions on wages paid by the temporary service contractor to the temporary worker performing services for the employer.
(h) If an employing unit fails to comply with an injunction order issued under subsection (f) of this section, the department may file with the district court of the county in which the employing unit resides, conducts business or may be found, a verified application showing that the employing unit received notice of an injunction order and has failed to comply with its terms. Upon receipt of the department's application, the court shall provide the employing unit with an opportunity for a hearing within twenty (20) days. Upon finding that the employing unit has violated the department's injunction, the court may issue an order directing the employing unit, including any partners or corporate officers, to comply with the injunction order and may assess a fine of up to one thousand dollars ($1,000.00) per day for each day of violation. Any officer or director having at least twenty percent (20%) ownership interest of a corporate employing unit, who controls or supervises filing contribution reports or making payment contributions under this act and who willfully fails to file the reports or make required payments, may be held jointly and severally liable for the contributions and interest due from the employing unit. In any court proceeding for the enforcement of an injunction order, the department shall not be required to show that it lacks adequate legal remedy or is suffering irreparable harm due to the violation of the injunction order. Any employing unit failing to comply with an order of the court issued under this subsection may be cited for contempt.
27-3-503. Payment; base rate; failure to pay; rate
variations; benefit ratio; new employer rate; special reserve rate.
(a) Employment wage contributions imposed under this section are payable by employers subject to this act. Contributions shall be paid to the department for the fund in accordance with regulations of the commission and shall not be deducted from employee wages.
(b) Except as otherwise provided by law, the base rate of contributions assigned to any employer is eight and one-half percent (8.5%) for 1988 and each calendar year thereafter subject to rate variations under subsections (d) and (f) of this section in addition to the adjustment factors computed under W.S. 27-3-505. Except as hereafter provided, a contributing employer failing to pay all contributions, interest and penalties or to submit all quarterly contribution reports due on his account or any account assumed under W.S. 27-3-507 on or before September 30 preceding the effective date of his assigned rate shall be assigned a delinquent rate which shall include a two percent (2%) tax rate increase in his base rate and shall also include in addition thereto the adjustment factors for the next calendar year beginning January 1. The delinquent rate shall not exceed the maximum assignable rate. The delinquent rate shall continue to be assigned through and including the calendar quarter in which the delinquent employer satisfies his delinquent account by paying all contributions, interest and penalties due and submitting all contribution reports due. Upon satisfaction of the delinquent account, the contributing employer shall be assigned the contribution rate otherwise applicable under this article beginning the next full calendar quarter. Provided however, that a delinquent employer shall pay an assigned delinquent rate for at least the first quarter even if the account is satisfied before January 1 of the new calendar year.
(c) Upon reviewing the account of a delinquent employer, the department may eliminate or reduce contributions payable due to the two percent (2%) delinquency tax rate increase imposed under subsection (b) of this section either upon a showing of good cause, or a finding that:
(i) The delinquency is less than one thousand dollars ($1,000.00);
(ii) After notice of the changed rate, the employer protested his delinquency tax rate in writing to the department pursuant to W.S. 27-3-506(b);
(iii) All delinquent amounts are paid by December 31 preceding the calendar year for which the delinquent rate has been assigned; and
(iv) All delinquent wage records are submitted.
(d) Rate variations from the base rate of contributions based upon the employer's benefit ratio shall be assigned to eligible employers each calendar year.
(e) Benefit ratios shall be computed for those employers whose accounts have been chargeable for benefits throughout the employer's experience period. An employer's benefit ratio shall be the contribution rate provided his rate is not more than eight and one-half percent (8.5%) in addition to the adjustment factors computed under W.S. 27-3-505. Benefit ratios shall be computed to the fourth decimal on the basis of the experience period preceding the calculation date of the rate.
(f) Any new employer not previously subject to this act or having no established experience period shall pay contributions at a rate equal to the average rate of contributions paid by his major industrial classification for the calendar year preceding the year in which he first employed workers in this state in addition to the adjustment factors computed under W.S. 27-3-505. In no case, however, will any new employer be assigned a rate of less than one percent (1%), plus the adjustment factors computed under W.S. 27-3-505. This rate shall be adjusted annually and the rate shall remain in effect until the employer has established an experience period in accordance with this article. The commission shall by rule and regulation develop the major industrial classifications for the state and the department shall annually determine the contribution rate for each classification based upon contributions paid during the preceding calendar year.
(g) Repealed by Laws 2003, Ch. 123, § 3.
(h) Any employer subject to this act solely due to having met the liability requirements under W.S. 27-3-105(a)(ii), 27-3-107(c) or (g) for the first time during the preceding calendar year shall be exempt from the delinquent rate provisions in subsection (b) of this section for the subsequent year, provided the employer has submitted all reports and contributions by April 30 of the subsequent year.
(j) Notwithstanding subsection (b) of this section, upon full satisfaction of an employer's delinquent account and at the written request of the employer, the department may, for good cause shown, reduce or eliminate the additional amounts payable as a result of the two percent (2%) delinquency rate.
27-3-504. Separate employer's accounts; charging of accounts; when accounts not charged.
(a) Separate accounts shall be maintained for each employer and benefits paid to an individual shall be charged to the account of his base period employer.
(b) If an individual is employed by two (2) or more employers during his base period, the base period employer's account shall be charged an amount bearing the same ratio to total benefits paid to the individual as the amount of wages payable by the employer bears to total wages payable by all employers during the individual's base period.
(c) Benefits paid to an individual by this state pursuant to a wage-combining arrangement under W.S. 27-3-608(b) and attributable in part to wages and employment covered by this act shall be charged in accordance with this section to the account of that individual's base period employer. If, however, the benefits are paid by another state, the amount chargeable to employers in this state for whom the individual was previously employed, shall be the amount reimbursed by this state to the paying state. The amount chargeable to employers in this state shall be an amount bearing the same ratio of total wages payable by all employers in this state during the individual's base period.
(d) If extended benefits are paid under W.S. 27-3-314 to an individual employed during his base period by an organization defined under W.S. 27-3-501(a)(vi) and the organization is subject to W.S. 27-3-503, one-half (1/2) of the extended benefits attributable to employment by the organization shall be charged to its account.
(e) Benefits shall not be charged to an employer's account if:
(i) They are paid in error;
(ii) The individual receiving benefits voluntarily leaves work without good cause attributable to employment or was discharged from employment for misconduct in connection with this work, provided however, that chargeability of an employer's account for benefits paid to a claimant in a particular benefit year shall be based solely on the last separation that occurred before the filing of the claimant's claim for which the claimant is monetarily eligible and shall not be affected by a separation that occurs after the filing of the initial claim and during the benefit year;
(iii) Repealed by Laws 1984, ch. 50, § 3.
(iv) The base period employer provided part-time employment and during the individual's current benefit year provides the same number of hours and wages provided during the base period. If the hours or wages are reduced during the current benefit year or the individual is terminated from part-time employment for reasons other than those specified under paragraph (ii) of this subsection, the employer's account shall be charged pursuant to this section;
(v) They are paid for an extended benefit period pursuant to W.S. 27-3-314, except as provided by subsection (d) of this section;
(vi) An individual receives benefits under this act for unemployment resulting directly from a major disaster declared by the United States President under 42 U.S.C. § 5122(2) and the individual is otherwise eligible for federal disaster unemployment assistance;
(vii) The individual receiving benefits is enrolled in an approved program pursuant to W.S. 27-3-307;
(viii) An individual receives benefits under this act for unemployment resulting directly from the reinstatement of another employee upon that employee's completion of service in the uniformed services, as provided in W.S. 19-11-103(a)(ix) and 38 U.S.C. 4303(13).
(f) Repealed by Laws 1989, ch. 222, §§ 2, 3.
27-3-505. Adjustment for noncharged and ineffectively
charged benefits; adjustment for positive and negative fund balance; computations; exception; maximum rate.
(a) An adjustment factor for noncharged and ineffectively charged benefits shall be computed to the fourth decimal by dividing the total noncharged and ineffectively charged benefits to all employers' experience rating accounts during the experience rating period ending June 30 by the total taxable wages payable during the experience period and added to the rate provided by W.S. 27-3-503. The total taxable wages payable under this subsection shall not include wages payable by employers electing payments instead of contributions under W.S. 27-3-509. Of this adjustment factor, twenty percent (20%) shall be allocated to the unemployment compensation fund, sixty percent (60%) shall be allocated to the employment support fund created by W.S. 27-3-211 and twenty percent (20%) shall be allocated to the workforce development training fund established in W.S. 9-2-2604.
(b) If the fund balance on October 31 of the year immediately preceding the calendar year for which the contribution rate is being computed is less than three and one-half percent (3½%) of the total payrolls reported to the department by September 30 for that year ending June 30, a positive fund balance adjustment factor shall be computed. The adjustment factor shall be computed annually to the fourth decimal by dividing the total reported taxable payrolls for the year ending June 30 of the year immediately preceding the calendar year for which the contribution rate is being computed, into a sum equal to twenty-five percent (25%) of the difference between the amount in the fund on October 31 of the same year and five percent (5%) of the total payrolls for that year ending June 30. The adjustment factor shall be effective until the fund balance on October 31 of the year immediately preceding the effective date of the contribution rate equals three and one-half percent (3½%) or more of the total payrolls for that year ending June 30. The department shall by rule and regulation establish an additional formula to apportion the positive fund balance adjustment factor between those employers whose accounts have incurred a benefit ratio, pursuant to W.S. 27-3-503(e), of zero (0) and those employers whose accounts have incurred a benefit ratio that is greater than zero (0). For purposes of the apportionment, those employers having no established experience period pursuant to W.S. 27-3-503(f) shall be treated the same as those employers whose accounts have incurred a benefit ratio that is greater than zero (0). The apportionment formula shall reflect:
(i) The proportion of contribution revenue received from each of the two (2) groups of employers during the previous calendar year;
(ii) An additional surcharge for employers whose accounts have incurred a benefit ratio that is greater than zero (0).
(c) If the fund balance on October 31 of the year immediately preceding the calendar year for which the contribution rate is being computed exceeds four percent (4%) of the total payrolls reported to the department by September 30 for that year ending June 30, a negative fund balance adjustment factor shall be computed. The negative adjustment factor shall be computed annually to the fourth decimal by dividing the total reported taxable payrolls for the year ending June 30 of the year immediately preceding the calendar year for which the contribution rate is being computed, into a sum equal to twenty-five percent (25%) of the difference between the amount in the fund as of October 31 of the same year and four percent (4%) of the total payrolls for that year ending June 30. The adjustment factor shall be effective until the fund balance on October 31 of the year immediately preceding the effective date of the contribution rate is equal to or less than four percent (4%) of the total payrolls for that year ending June 30.
(d) The adjustment factors computed pursuant to this section are separate from an employer's experience rating, shall be algebraically added to the employer's contribution rate and payable by each employer subject to this article. The adjustment factor computed under subsection (c) of this section shall be algebraically added only to the contribution rate of those employers eligible for an experience rating. The adjustment factors applied to an employer's contribution rate shall not be less than zero (0).
(e) Repealed by Laws 1983, Sp. Sess., ch. 2, § 3.
(f) For purposes of this section, the fund balance includes any amount credited to the state unemployment insurance trust fund pursuant to W.S. 27-3-202(b) but does not include any amount credited to Wyoming's account in the unemployment trust fund pursuant to 42 U.S.C. § 1103 and appropriated for administrative expenses.
(g) Repealed by Laws 1984, ch. 50, § 3.
(h) Effective for the period beginning January 1, 1991, the adjustment factors computed under subsections (a) and (b) of this section shall not exceed one and five-tenths percent (1.5%) to be chargeable against employers.
27-3-506. Notice of rates and charges; relief, review or redetermination.
(a) The department shall notify an employer of his contribution rate determined pursuant to this article and of total benefit charges to his account within a reasonable time after the close of each experience period. A base period employer shall be notified of the filing of all initial claims which may be charged to his account. Except as otherwise provided by the legislature and on or before January 1 of each year, the department shall notify each employer of his projected contributions payable under W.S. 27-3-503 and 27-3-505 for the ensuing calendar year. Notice under this section shall be by mail to the last known address of record.
(b) A determination of contribution rates by the department for any calendar year is binding upon the employer unless within thirty (30) days after notice is mailed, he files an application for review and redetermination in accordance with this section.
(c) An employer may apply in writing to the department within twenty-eight (28) days after the mailing or delivery of notice of benefits charged to his account for relief of benefit charges under W.S. 27-3-504(e)(i), (ii), (iv) or (viii). The application shall state the reasons for relief. Determinations of benefits not charged to an employer's account and which are paid from the trust fund shall be recorded and shall specify the reasons therefor. The records are open to inspection by an employer or his legal representative.
(d) An employer may apply to the department for review of a decision or determination involving contribution liability, contribution rates or the charging of benefit payments under W.S. 27-3-509. The application shall be in writing and shall state the reasons for review. The department, on behalf of the commission, shall notify the employer of its acceptance or denial of the application for review or of a redetermination by the commission. If the commission grants review, the employer shall be given opportunity for hearing in accordance with W.S. 27-3-401 through 27-3-409 to the extent not inconsistent with this article. An employer in any proceeding involving contribution rates or liability may not contest benefits paid and charged to his account in accordance with a determination, redetermination or decision pursuant to W.S. 27-3-401 through 27-3-409 unless he was not a party to the proceeding. A denial or redetermination is final unless within thirty (30) days after notice is mailed a petition for judicial review is filed in accordance with W.S. 27-3-407.
(e) An employer's account shall not be relieved of charges relating to a payment that was made erroneously from the unemployment compensation fund after July 1, 2013 if the department determines that:
(i) The erroneous payment was made because the employer, or the agent of the employer, was at fault for failing to respond timely or adequately to a written request, sent by United States mail or by electronic mail, from the department for information relating to the claim for benefits which resulted in the erroneous payment; and
(ii) The employer or agent has established a pattern of failing to respond timely or adequately to requests similar to those identified in paragraph (i) of this subsection.
(f) For purposes of subsection (e) of this section, "timely" means within fifteen (15) days after a notice or request is sent by United States mail or by electronic mail to the address of record of the employer or employer's agent. The department shall acknowledge receipt of the requested information within fifteen (15) days, if requested by the employer or the employer's agent. Acknowledgment shall be by United States mail or electronic mail.
27-3-507. Person acquiring trade of employing unit; transfer of experience and assignment of rates.
(a) A person acquiring the trade, organization, business or substantially all the assets of an employer subject to this act shall assume the employer's account, benefit experience and contribution rate. If the acquiring person is an employer subject to this act, the department shall consolidate the separate accounts and benefit experience and shall determine the contribution rate of the acquiring person effective the first day of the calendar quarter following the date of acquisition. A delinquency rate shall be assumed by the acquiring person as provided in W.S. 27-3-503(b) when the acquiring person owned or controlled an interest in the transferring employer or if the acquiring person is a member of the immediate family of the transferring employer.
(b) The transfer of some or all of an employer's workforce to another person shall be considered a transfer of trade or business when, as a result of the transfer, the transferring employer no longer performs trade or business with respect to the transferred workforce, and the trade or business is performed by the person to whom the workforce is transferred.
(c) If an employer transfers all or a portion of its trade or business to another employer and, at the time of the transfer, there is substantially common ownership, management or control of the two (2) employers, then the unemployment insurance experience attributable to the transferred trade or business shall be transferred to the employer to whom the business is transferred. The rates of both employers shall be recalculated and made effective the first day of the calendar quarter immediately following the date of the transfer of trade or business. Both employers may be given a delinquency rate as provided in W.S. 27-3-503(b) if applicable.
(d) If, following a transfer of experience under this section, the department determines that a substantial purpose of the transfer of the trade or business was to obtain a reduced liability for contributions, then the accounts of the employers involved shall be combined into a single account and a single rate assigned to the account.
(e) If a person is not an employer under this section at the time the person acquires the trade or business of an employer, the unemployment insurance experience of the acquired employer shall not be transferred to the person if the department finds that the person acquired the trade or business of the employer solely or primarily for the purpose of obtaining a lower rate of contributions. Instead, the person shall be assigned the applicable new employer rate under W.S. 27-3-503(b). In determining whether the trade or business was acquired solely or primarily for the purpose of obtaining a lower rate of contributions, the department shall use objective factors which may include the cost of acquiring the business, whether the person continued the business enterprise of the acquired business, how long the business enterprise was continued, or whether a substantial number of new employees were hired for performance of duties unrelated to the business activity conducted prior to acquisition.
(f) The department shall establish procedures to identify the transfer or acquisition of a business for purposes of this section and W.S. 27-3-706.
A joint venture composed of two (2) or more employers with accounts meeting the requirements of W.S. 27-3-503(b) and (c) shall apply in writing to the department within four (4) months after the date of formation of the joint venture for determination of a contribution rate. The department shall, upon receipt of application and pursuant to this article, assign a contribution rate based upon the benefit ratio computed on the consolidation of the separate accounts and benefit experiences of the employers for the experience period. The contribution rate shall be determined and assigned by the department to the joint venture each calendar year until its separate account and benefit experience qualify as an experience period.
27-3-509. Election of substitute payments by certain
organizations authorized; filing and liability period; billing; posting of security; exceptions.
(a) An organization or nonprofit organization defined by W.S. 27-3-501(a)(v) and (vi) and subject to this act may instead of paying contributions otherwise required by this article, elect to pay an amount determined pursuant to subsection (c) of this section. If an organization or nonprofit organization elects payment liability at the time it is determined an employer subject to this act, it shall file written notice of its election with the department not later than thirty (30) days following the date of determination. Liability for payments shall be at least one (1) year from the date of determination and shall continue until written notice is filed with the department terminating its election. Notice shall be filed not later than thirty (30) days before the beginning of the taxable year for which the termination is effective. An organization or nonprofit organization previously paying contributions under this act may file written notice of election for payment liability with the department not later than thirty (30) days prior to the beginning of any taxable year. The election shall not be changed for at least two (2) years from the effective date.
(b) The department may for good cause extend the required filing period for notice of election or termination and may permit an election to be retroactive to January 1 of the year in which the election is made. It shall notify an organization of its determination of employer status, the effective date of an election and a termination of election. Determinations are subject to reconsideration, appeal and review in accordance with W.S. 27-3-506.
(c) At the end of each calendar quarter or other period determined by the department, the department shall bill each nonprofit organization electing payment liability under this section for an amount equal to the total amount of regular benefits plus one-half (1/2) of the amount of extended benefits paid during the quarter or other prescribed period attributable to employment in the nonprofit organization. An organization electing payment liability under this section shall be billed in a similar manner for an amount equal to the total amount of extended benefits attributable to employment by the organization during the billing period. Payment shall be made not later than thirty (30) days after the bill is mailed or delivered unless an application for review and redetermination is filed. Payments shall not be deducted from employee wages and if not paid when due, the employer is subject to interest under this article. The department shall notify each employer of transactions affecting its account and its right to review pursuant to W.S. 27-3-506.
(d) The commission may by regulation require an employer electing payments under this section to post surety bonds or other securities.
(e) Noncharging provisions under W.S. 27-3-409(a) and 27-3-504(e) and the right to protest benefit charges under W.S. 27-3-506(c) do not apply to employers electing payments under this section.
(f) Any employer failing to make required payments under this section, including assessments of interest and penalties, within ninety (90) days after receipt of a bill, shall not be eligible for making payments under this section for the following tax year unless full payment is received by the department before the contribution rates for the next tax year are computed under this act, subject to the following:
(i) Any employer losing the option to make payments under this section because of late payments or nonpayment under this subsection shall have the option reinstated if after one (1) year, all contributions have been paid on a timely basis and no contributions, payments instead of contributions for paid benefits, penalties or interest remain outstanding;
(ii) Failure of the tribe or any tribal unit to make payments required under this section including assessment of interest and penalties, after exhaustion of all collection efforts determined necessary by the department, shall exclude services performed for the tribe from employment for purposes of W.S. 27-3-105(a)(iii);
(iii) Upon termination or reinstatement of any tribe or tribal unit under this section, the department shall notify the United States internal revenue service and the United States department of labor;
(iv) Notice of payment and reporting delinquency to any Indian tribe or tribal unit under this subsection shall include information that failure to make full payment within the prescribed time:
(A) Imposes a tax liability upon the tribe under the federal Unemployment Tax Act;
(B) Eliminates eligibility of the tribe for election of payments under this section;
(C) May result in exclusion of the tribe as an employer under this act as defined by W.S. 27-3-103(a)(x) and the exclusion of services performed for the tribe from employment covered under this act pursuant to paragraph (ii) of this subsection.
27-3-510. Delinquencies; interest to be charged; deposit;
collection by civil action; jeopardy assessments; posting of bond; liability of corporate officers and directors.
(a) Contributions not paid on the date due shall bear interest of two percent (2%) per month or any fractional portion thereof from the due date until payment plus accrued interest is received by the department. Interest collected pursuant to this subsection shall be paid into the employment security revenue account.
(b) If after notice an employer defaults in any contribution or interest payment, the amount due shall be collected by civil action in the name of the department. An employer adjudged liable shall pay the costs of the action. Civil actions brought under this subsection shall be given preference over all other civil actions except petitions for judicial review under this act and cases under the Wyoming Worker's Compensation Act.
(c) If an employer or employing unit neglects or refuses to submit reports and pay contributions or interest required by this act, discontinues business at any of its places of business or leaves this state without submitting reports and paying contributions or interest and the neglect, refusal, discontinuance or removal jeopardizes the fund or any rights to benefits, the department may make a jeopardy assessment against the employer or employing unit. The department shall immediately notify the employer of the assessment in writing by mail. The assessment is final unless the employer files a written protest of the assessment with the department within fifteen (15) days after mailing. An employer filing a protest may request a hearing before the commission in writing. After the hearing the department shall notify the employer of findings of the commission. If an assessment is made, it is final upon issuance of notice and the department shall collect the assessment of any delinquent contributions or interest.
(d) The department may require any employing unit which has been habitually delinquent in making contributions, filing returns or qualifying as required by this act to file a bond or other security with the department which will insure the payment of future contributions required by this act.
(e) Any officer or director having at least twenty percent (20%) ownership interest of a corporate employing unit and any manager of a limited liability company having at least twenty percent (20%) ownership interest of a limited liability company employing unit, who controls or supervises filing contribution reports or making payment contributions under this act and who fails to file the reports or make required payments, and the employing unit fails to pay the amounts due the department, is liable for the contributions or reimbursement including interest, penalties and costs. Liability under this subsection shall:
(i) Survive dissolution, reorganization, bankruptcy, receivership or assignment for the benefit of creditors of or by the corporate or limited liability company employing unit;
(ii) Be initially determined by the department. The department's determination is final unless the officer or director determined to be liable files a written appeal within fifteen (15) days after the date notice of the determination is mailed to his address or the address of the corporate or limited liability company employing unit. The burden of proof rests with the department and the appeal shall be conducted in the manner provided under W.S. 27-3-506 for appeals from employer liability determinations.
27-3-511. Delinquencies; lien; foreclosure; notice and hearing; satisfaction and release; remedies not exclusive.
(a) If contributions or interest under this act are not paid on the date due, the department may file a lien certificate verified under oath with the county clerk of the county in which the employer has his principal place of business and a copy with any other county. The certificate shall state the amount of the contributions and interest due, the name and last known address of the delinquent employer and that the department complied with computation and levy requirements for contributions and interest under this act. The county clerk shall number, file and index the certificate under employment security contributions' liens and under chattel mortgages.
(b) The amount of contributions and interest due the department is a lien upon all real and personal property including motor vehicles owned or acquired by the employer. The lien is in effect from the time of filing the certificate and covers all property of the employer in any county in which filed. The department may initiate proceedings for foreclosure in district court within ten (10) years from the date of filing. After the date of filing, no person shall remove property subject to a lien under this section from the state.
(c) Before filing the certificate, the delinquent employer shall be given opportunity for hearing before the commission or its duly authorized representative. Notice of the time and place of the hearing shall be mailed at least fifteen (15) days prior to the hearing. If the delinquent employer or his representative fails to appear at the hearing or fails to establish to the satisfaction of the commission that contributions and interest are erroneous, the department may file the certificate. The certificate may be filed without opportunity for hearing if a delinquent employer is leaving the state with intent to default.
(d) If a lien is entered and the contributions are paid or found erroneous, the department shall file notice of satisfaction of the lien certificate with the county clerk of any county in which the lien is filed. The department may release any property from the lien or subordinate the lien if it determines contributions and interest are secured by a lien on other property or the collection of contributions and interest is not in jeopardy. The department shall certify release or subordination under this subsection.
(e) The remedies provided by this section are not exclusive.
(f) Notwithstanding any other provision of this section, the department may enter into installment payment agreements for delinquent tax and interest liabilities where repayment requirements are met and where payment in a lump sum would cause severe inconvenience to the taxpayer.
(g) For purposes of this section, "employer" includes those individuals described in W.S. 27-3-510(e) under the conditions described in that section.
27-3-512. Priority over other claims under receivership.
If an employer's assets are distributed by court order under receivership, assignment, adjudicated insolvency or other proceeding, contributions under this act shall have priority over all claims except taxes and claims for wages of not more than two hundred fifty dollars ($250.00) per claimant and earned within six (6) months before the proceeding. Priority of contributions in cases adjudicated under 11 U.S.C. § 101 et seq. shall be as provided by 11 U.S.C. § 507(a).
27-3-514. Action for recovery of payments under protest; procedure.
An employer paying contributions under protest may within six (6) months after payment initiate action for recovery against the department in a court of competent jurisdiction. The protest shall be verified and filed at the time payment is made and shall state the grounds for objection. Failure to initiate action within six (6) months is a waiver of recovery under this subsection. Review by the court is limited to the objections stated in the protest. If judgment is for the employer, the amount shall be credited to his account for contributions and interest due under this act. Any remaining balance shall be refunded to the employer from the clearing account.
27-3-515. Adjustment or refund for erroneous collection;
reduction of contributions and interest in certain cases; recovery by department.
(a) An employer may apply to the commission or the commission may on its own motion provide for an adjustment of contributions or interest or for a refund if the adjustment cannot be made. This subsection applies only to payments made within three (3) years before the date of application or determination. Upon determination of an erroneous collection, the department shall grant an adjustment without interest for future contribution payments or if the adjustment cannot be made, refund the amount without interest from the fund.
(b) The department may upon its own motion or written application reduce or waive the amount of interest due under W.S. 27-3-510(a) if the collection of the full amount of interest is against equity and good conscience. If an employer is no longer subject to this act pursuant to W.S. 27-3-502, the department may reduce or cancel the amount of contributions or interest due upon a determination based on findings entered into the record that the employer is:
(i) Adjudicated insolvent by a court of competent jurisdiction with no remaining assets;
(ii) Deceased with no estate or the estate is closed and all assets are distributed;
(iii) A dissolved corporation with no remaining assets;
(iv) Not found within three (3) years after the date of termination of coverage under this act and has no property located in the state; or
(v) Not capable of paying the total amount due within three (3) years after the date of termination of coverage under this act, has no property in the state and failure to accept a partial amount of the total as settlement may result in a substantial loss to the fund.
(c) Subsection (b) of this section does not prevent the department from collecting the balance of interest and contributions not paid if its action was based upon a misrepresentation or omission of facts or if amounts due under this act are collectible at a future date.
(a) Any project in Wyoming with an estimated construction cost equal to or greater than the threshold construction cost defined by the industrial siting council pursuant to W.S. 35-12-102(a)(vii), a majority of which is planned to be completed or discontinued within a period of seven (7) years, and which will require the employment of at least two hundred fifty (250) people is subject to this section. After the project is initiated, each employing unit working on a project which meets the criteria specified under this section shall report annually to the department any change in contract bids within the state as may have been determined under subsection
(b) of this section.
(b) If the department determines that the project is within the criteria stated by this section, it may assess and collect from the general or prime contractor or, in those situations where there is no general or prime contractor, the owner for whom the project is being constructed, on behalf of each employing unit, an additional amount of one-half percent (.5%) times the successful bid amount on the project awarded to each employing unit but not to exceed one-half percent (.5%) times the total amount allowed under all bids accepted under the project. The amount is in addition to any other contribution required by this act and shall be treated as incremental bond payments to insure payment for all benefits ultimately claimed. The payments are not contributions until the ultimate determination of liability is made under subsection (d) of this section. The department shall amend the amount assessed under this section in accordance with any increases in contract bids reported by an employing unit under subsection (a) of this section. An employing unit may be enjoined by the department from engaging or continuing in business until all payments required under this subsection are made.
(c) Repealed by Laws 1986, ch. 52, § 2.
(d) The amount collected under this section shall be credited to a separate account. Within one (1) year after completion or discontinuance of the project or after an employing unit completes its phase of the work, the department shall determine the total benefits paid to employees of the employing unit or units and if total contributions made by the units under W.S. 27-3-503 exceed total benefits paid to the employees of the units, the difference plus accrued interest shall be refunded to the appropriate general or prime contractor or the owner who paid the additional contribution under subsection (b) of this section but not exceeding the amount paid under this section plus accrued interest. The amount not refunded shall be credited to the unemployment compensation fund.
(e) Repealed By Laws 2007, Ch. 177, § 2.
Whenever this article requires any determination, decision or notice to be transmitted through the mail, the determination, decision or notice may be transmitted by an internet application approved by the department but only upon an election by the claimant or employer to receive the information by electronic transmission. Upon the completion of every electronic transmission authorized by this section, the department shall provide to the claimant or employer an electronic acknowledgement specifying the date and time when the transmission was sent or received. Except as otherwise required by rules applicable to appeals to the courts of this state, determinations, decisions or notices transmitted by an approved electronic means may be appealed or protested by use of the same means. For the purpose of all relevant time limits established by this article, electronically transmitted information shall be deemed delivered on the date indicated on the acknowledgment required by this section, or if no acknowledgement exists, on the date the electronic delivery is initiated by the party sending the information.
composition; terms; vacancies; salary; chairman; quorum; removal; office; seal.
(a) The unemployment insurance commission of Wyoming is created within the department of workforce services and shall consist of three (3) members serving a term of six (6) years each. Appointments, vacancies and expiration of terms shall be in accordance with W.S. 28-12-101 through 28-12-103. A member shall not hold any state office or serve as an officer or on a committee of any political organization during the term of membership. No more than seventy-five percent (75%) of the members shall be of the same political party.
(b) Every two (2) years one (1) member shall be elected by the membership to serve as chairman. Two (2) members is a quorum. A vacancy does not prevent the remaining members from exercising powers of the commission. One (1) member shall not exercise powers if two (2) vacancies occur at the same time.
(c) Commission members shall receive a salary equal to the per diem paid to members of the Wyoming legislature under W.S. 28-5-101 for each day of actual service and when engaged in necessary travel plus necessary expenses.
(d) The governor may remove a commissioner as provided in W.S. 9-1-202.
(e) The office of the commission shall be located in Casper, Wyoming and the commission shall have an official seal which shall be judicially noticed.
27-3-602. Powers and duties of unemployment insurance commission; personnel.
(a) The commission shall:
(i) Adopt rules necessary for the administration of this act by the department of workforce services and the department, in accordance with law, may make expenditures, require reports, make investigations and take other action it considers necessary;
(ii) Determine its methods of procedure in accordance with this act;
(iii) Repealed by Laws 1990, ch. 63, § 3.
(iv) Through the department, and if possible, provide a reserve against fund liability for future benefit payments in excess of contributions in accordance with accepted actuarial principles based on employment, business activity and other relevant factors;
(v) Through the department, recommend to the governor and the legislature a change in contribution or benefit rates when necessary to protect fund solvency;
(vi) Define and prescribe by regulation necessary procedures for total unemployment and part total unemployment;
(vii) Through the department, publish provisions of this act, rules and regulations, reports and other relevant material and furnish copies in accordance with W.S. 16-4-204 to any person upon application.
(b) The commission may adopt, amend or rescind rules and regulations after notice and public hearing in accordance with the Wyoming Administrative Procedure Act.
(c) In administering this act, the commission or any authorized representative of the department may administer oaths and affirmations, take depositions, certify official acts, subpoena witnesses and require the production of books, papers or other records material to the administration of this act.
(d) If a subpoena issued to any person pursuant to subsection (c) of this section is disobeyed, the district court of the district in which the inquiry is conducted or the person is found, resides or conducts business shall, upon application by the commission or department, issue to the person refusing to obey the subpoena an order requiring the person to appear before the commission or department to produce evidence if ordered or to give evidence touching the matter in question. Any person failing to obey the court order may be punished by the court for contempt and upon conviction, shall be fined not less than two hundred dollars ($200.00), imprisoned not more than sixty (60) days, or both. Each day of violation is a separate offense.
(e) The privilege of self-incrimination is not a defense for violating subsection (c) of this section nor shall a person be incriminated for providing testimony or evidence under subsection (c) of this section except for perjury committed during testimony.
(f) The department of workforce services shall provide personnel necessary to administer this act in accordance with rules of the commission and determinations of the commission authorized by law. The commission shall not exercise supervisory authority over those personnel.
Except as otherwise provided, information maintained pursuant to this act shall not be disclosed in a manner which reveals the identity of the employing unit or individual. The confidentiality limitations of this section do not apply to transfers of information between the divisions of the department of workforce services so long as the transfer of information is not restricted by federal law, rule or contract. Any employee who discloses information outside of the department in violation of federal or state law may be terminated without progressive discipline.
27-3-605. Responsibilities of department of workforce services.
(a) The department of workforce services shall administer the unemployment compensation program in this state.
(b) Repealed By Laws 2002, Ch. 100, § 4.
(c) Repealed By Laws 2002, Ch. 100, § 4.
27-3-606. Department duties regarding unemployment and reemployment.
(a) Repealed by Laws 1996, ch. 4, § 3.
(b) Repealed by Laws 1996, ch. 4, § 3.
(c) The department shall take appropriate steps to:
(i) Repealed By Laws 2005, ch. 186, § 3.
(ii) Repealed By Laws 2005, ch. 186, § 3.
(iii) Repealed By Laws 2005, ch. 186, § 3.
(iv) Repealed By Laws 2005, ch. 186, § 3.
(v) Conduct and publish results of investigations and research studies.
27-3-607. Cooperation by department with federal, state
and local agencies; disclosure and submission of specified information; limitations.
(a) The department shall:
(i) Cooperate with and report to the federal government pursuant to requirements of 42 U.S.C. § 902 et seq. and comply with federal regulations governing expenditures of funds paid to the state under 42 U.S.C. § 501 et seq.;
(ii) Furnish upon request of any federal agency administering public works programs or public employment assistance, the name, address, ordinary occupation and employment status of benefit recipients and their right to future benefits under this act;
(iii) Upon request, pursuant to contract and on a reimbursable basis, of any state or political subdivision, furnish wage information obtained pursuant to this act determined necessary by regulation of the United States health and human services department for determining eligibility or assistance under 42 U.S.C. § 601 et seq.;
(iv) Upon request, pursuant to contract and on a reimbursable basis, disclose to officers or employees of any state or local child support enforcement agency operating pursuant to a plan described under 42 U.S.C. § 654 or to the federal parent locater service, any wage or unemployment compensation claim information obtained under this act for an identified individual;
(v) Upon request, pursuant to contract and on a reimbursable basis, disclose to officers and employees of the United States department of agriculture and any state supplemental nutrition assistance program agency defined under 7 U.S.C. § 2012(n)(1), any wage information obtained under this act for an identified individual, any record of application for or receipt of benefits and the amount received, his most recent home address and any refusal of an offer of employment and a description of this employment;
(vi) Upon request, pursuant to contract and on a reimbursable basis, provide unemployment insurance benefit and wage information to the department of housing and urban development and to other public housing agencies. Such information shall be provided as required by the McKinney Homeless Act of 1988, section 904(c) and in a manner as prescribed by the secretary of labor;
(vii) Disclose information contained in its records to the United States secretary of health and human services or his designee, as necessary for the purposes of the national directory of new hires established under section 453 of the Social Security Act. The requesting agency shall reimburse the department for the cost of furnishing this information. The department shall work in conjunction with other states to ensure that adequate safeguards exist at the federal level so that state information being provided under this section is not disclosed for any purpose, except as authorized by law;
(viii) Upon request, pursuant to contract and on a reimbursable basis, disclose and furnish copies of records relating to the administration of this act to the railroad retirement board;
(ix) Require any recipient of information disclosed under this subsection to comply with any safeguards necessary and specified in federal law to ensure that the information furnished shall be used only for the purposes authorized.
(b) A requesting agency shall agree that information obtained under paragraph (a)(iv) of this section be used only for establishing and collecting child support obligations from and locating individuals owing obligations enforced pursuant to a plan described under 42 U.S.C. § 654, and that information obtained under paragraph (a)(v) of this section be used only for determining the applicant's eligibility for benefits or the amount of benefits under the supplemental nutrition assistance program. The agency shall also reimburse the department for the cost of furnishing this information. Requirements for confidentiality of information under this act and the penalties for improper disclosure apply to the use of this information by officers and employees of any child support or supplemental nutrition assistance program agency and the United States department of agriculture.
(c) The department may, on a reimbursable basis unless otherwise provided:
(i) Repealed By Laws 2005, ch. 186, § 3.
(ii) Notwithstanding W.S. 27-3-603 and subject to regulations of the commission and pursuant to contract, disclose necessary information obtained from any employing unit or individual under this act and any determination of benefit rights to any state or federal agency administering Wagner-Peyser Act or federal Workforce Innovation and Opportunity Act or subsequent similar enactments training services;
(iii) Repealed By Laws 2005, ch. 186, § 3.
(iv) Cooperate with any federal agency administering any unemployment compensation law;
(v) Allow access to information obtained pursuant to the administration of this act to the division of criminal investigation of the attorney general's office, upon a written request by the director which demonstrates there is a reasonable basis to believe the health or safety of a person is in danger and the information may lead to the elimination of that danger;
(vi) Allow the state auditor's office and the division of worker's compensation access to certain information obtained under this act limited to the name, address, social security identification number and other general information pertaining to benefit entitlement and employers. Disclosure of information under this paragraph is for purposes of comparing information of the department with that of a requesting state agency for the detection of improper or fraudulent claims or the determination of potential tax liability, for employer compliance with notification, registration, certification or qualification requirements or for the collection of amounts owed the department;
(vii) Upon request, disclose information not otherwise restricted by law or contract to the bureau of labor statistics;
(viii) Upon written request, disclose any information obtained under this act to director or agency head, or his designee or agent, in the executive branch of federal or state government to be used by the public official only for official business in connection with the administration of a law or in the enforcement of a law by that public official. The requesting agency shall reimburse the department for the cost of furnishing this information unless the cost is insignificant;
(ix) Inform a project owner or contractor if his prime contractor or any subcontractor has notified the department and whether or not the prime contractor or any subcontractor is in compliance with this act;
(x) Pursuant to contract, disclose wage information on a nonreimbursable basis to the social security administration utilizing the unemployment insurance interstate inquiry system;
(xi) Require any recipient of information disclosed under this subsection to comply with any safeguards necessary as specified in federal regulation to ensure that the information furnished shall be used only for the purposes authorized;
(xii) Notwithstanding W.S. 27-3-603 and subject to regulations of the commission, disclose necessary information obtained from any employing unit or individual under this act and any determination of benefit rights to any state or federal agency administering unemployment compensation laws or federal tax laws and to the office of the United States bankruptcy trustee.
(d) The department may conduct and publish statistical analysis of payroll and employment of state agencies in the executive branch and of school districts, which may reveal the identity of state agency and school district employing units.
27-3-608. Agreements by department with other states, federal government and foreign governments authorized.
(a) Notwithstanding W.S. 27-3-104 through 27-3-108, the department may enter into arrangements with other states for services performed by an individual ordinarily performing services in more than one (1) state for a single employing unit. Subject to election by the employing unit and approval of the affected states, the arrangement may specify that service is performed entirely within the state in which:
(i) Any part of the individual's services are performed;
(ii) The employing unit maintains its principal place of business; or
(iii) The individual has his residence.
(b) The department is also authorized to enter into agreements with other states or the federal government for wages or services entitled to benefits under the law of another state or the federal government to be wages for insured work under this act or under the law of another state or the federal government. The department shall participate in arrangements approved by the United States secretary of labor for the payment of compensation by combining an individual's wages and employment covered under this act with those covered under the laws of other states which assure the prompt and full payment of compensation, apply the base period of a single state law to a claim involving the combination of wages and employment covered under two (2) or more state laws and avoid duplication of wages and employment. No arrangement under this subsection shall be entered into unless the participating state or federal agency agrees to reimburse the fund for the amount of benefits paid under this act for wages or services the department finds fair and reasonable. The department shall reimburse to other state or federal agencies a reasonable portion of benefits paid under their law.
(c) The department may make and receive reimbursements from or to the fund in accordance with arrangements pursuant to this section. For purposes of this act, reimbursements payable are benefits.
(d) To the extent authorized by federal law and constitution and agreements entered into between the federal government and foreign governments, the department may enter into or cooperate in agreements for facilities and services provided by a foreign government for use in receiving claims and paying benefits under this act or similar law of the foreign government.
27-3-609. Legal representation in civil and criminal actions.
(a) In any civil action to enforce this act, the department may be represented by a qualified attorney employed by the department or by the attorney general at the request of the department.
(b) All criminal actions for violation of this act or any rules or regulations issued pursuant to this act shall be prosecuted by the attorney general or at his request and under his direction, by the district attorney for the county in which the prosecution is brought.
27-3-610. Establishment of fee schedule and payment for certain services.
The department may charge a fee and require payment to recover the cost of services for photocopying, preparation of forms or other material in responding to inquiries to provide information not confidential by law, furnishing publications prepared by the department and any other services rendered by the department which are not directly related to the administration of this act. Such fees shall be deposited into the employment security administration account.
27-3-611. Maintenance of records by department; procedures.
The department may maintain any or all of its records on a computer imaging system that maintains true and accurate copies or images of original documents. The department may destroy original documents after putting the documents in the computer imaging system. True and accurate copies generated by the computer imaging system shall be admissible in court or administrative hearings under the same conditions as the original document would be admissible.
27-3-701. Financing of contributions or waiver of rights by employees.
No employer shall directly or indirectly make, require or accept any deduction from wages or payments by employees to finance contributions required by this act or require or accept any waiver of an employee's right under this act. Any employer or his officer or agent violating this section shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00), imprisoned for not more than six (6) months, or both. Each violation is a separate offense.
27-3-702. Obtaining benefits by fraud; disqualification of benefits; penalties.
(a) No person shall, for himself or any other person, knowingly make a false statement or misrepresentation or knowingly fail to disclose a material fact to obtain or increase benefits or other payments under this act or other state or federal law. Any person violating this section is guilty of:
(i) A misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00), imprisonment for not more than ninety (90) days, or both, if the amount of benefits obtained in violation of this section is less than one thousand dollars ($1,000.00); or
(ii) A felony punishable by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both, if the amount of benefits obtained under fraud is one thousand dollars ($1,000.00) or greater.
(b) Upon conviction the court shall require the defendant to make restitution to the department in the amount of benefits or other payments improperly paid due to the defendant's fraud. Each false statement, misrepresentation or failure to disclose a material fact is a separate offense. This section shall not preclude prosecution under any other applicable law.
(c) In addition to the penalties provided by this section, a person convicted under this section or any other applicable law shall be disqualified from receiving benefits in any week beginning within a two (2) year period immediately following conviction.
27-3-703. Fraud by employing unit; refusal to furnish
reports; failure to make required payments; failure to comply with injunction order; penalties.
(a) No officer, agent or any other individual of an employing unit shall knowingly make a false statement or misrepresentation or knowingly fail to disclose a material fact with the intention of preventing or reducing the payment of benefits to any entitled individual, to avoid being subject to this act or to avoid or reduce any contribution or other payment required from an employing unit under this act, or willfully fail or refuse to make any contribution or other payment. Any such individual violating this subsection is guilty of a misdemeanor punishable by imprisonment for not more than ninety (90) days, a fine of not more than seven hundred fifty dollars ($750.00), or both. Each false statement, misrepresentation or failure to disclose a material fact is a separate offense.
(b) Any employing unit or if the employing unit is a corporation, any officer or director liable under W.S. 27-3-510(e), fraudulently failing to pay contributions required under this act for a period of two (2) or more consecutive calendar quarters or the total of which exceeds five hundred dollars ($500.00), is guilty of a felony punishable by a fine of not more than five thousand dollars ($5,000.00), imprisonment for not more than five (5) years, or both.
(c) Any officer, agent or other individual of an employing unit who willfully refuses or fails to furnish any report or to produce or permit the inspection of records required by this act is guilty of a misdemeanor. Each day of any failure or refusal is a separate offense.
(d) Any employing unit failing to comply with a court order issued pursuant to W.S. 27-3-502(h), or any partner or corporate officer of the employing unit aiding or assisting the employing unit in not complying with the court order, is guilty of a misdemeanor.
(e) This section shall not preclude prosecution under any other applicable state law.
Any person willfully violating this act or any order, rule or regulation under this act for which no specific penalty is provided is guilty of a misdemeanor and shall be fined not more than seven hundred fifty dollars ($750.00), imprisoned not more than sixty (60) days, or both. Each day of violation is a separate offense.
An individual who knowingly and with the intent to defraud allows or authorizes another person to sign the individual's name or use his personal identification number to make or file a claim for benefits on the individual's behalf is subject to the penalties prescribed in W.S. 27-3-311(e) and 27-3-702(a).
(a) A person who knowingly, or with deliberate ignorance or reckless disregard of the true facts or the requirements of this act, violates or attempts to violate W.S. 27-3-507 or any other provision of this act related to determining the assignment of a contribution rate, or who knowingly advises another to violate the requirements of W.S. 27-3-507 or any other provision of this act related to determining the assignment of a contribution rate, shall be subject to the following penalties:
(i) A person who is an employer shall be assigned, for the rate year during which the noncompliance or misrepresentation occurred and for the following three (3) rate years, the highest rate assignable under W.S. 27-3-503. If the person's business is already at the highest rate for any year, or if the amount of increase in the person's rate would be less than two percent (2%) for that year, then a penalty rate of two percent (2%) of taxable wages shall be imposed for that year. This penalty may exceed the maximum assignable rate;
(ii) A person who is not an employer shall be subject to a civil penalty of not more than fifty thousand dollars ($50,000.00). Funds received by the division under this paragraph shall be paid over to the state treasurer to be credited to the public school fund of the county in which the violation for which the penalty imposed occurred;
(iii) In addition to the penalty imposed pursuant to paragraphs (i) and (ii) of this subsection, any violation or attempted violation of W.S. 27-3-507 or any other provision of this act related to determining the assignment of a contribution rate may be prosecuted as a felony punishable by a fine of not more than fifty thousand dollars ($50,000.00), imprisonment for not more than five (5) years, or both. The fine under this paragraph shall be paid over to the state treasurer to be credited to the public school fund of the county in which the violation for which the penalty imposed occurred.
(a) As used in this article:
(i) "Affected unit" means a specified plant, department, shift or other definable unit of an employer that includes two (2) or more employees to which an approved short time compensation plan applies;
(ii) "Director" means the director of the department of workforce services or the director's designee responsible for approving applications for participation in a short time compensation plan;
(iii) "Health and retirement benefits" means employer provided health benefits and retirement benefits under a defined benefit pension plan as defined in section 414(j) of the Internal Revenue Code or contributions under a defined contribution plan defined in section 414(i) of the Internal Revenue Code that are incidents of employment in addition to the cash remuneration earned;
(iv) "Short time compensation" means the unemployment benefits payable to employees in an affected unit under an approved short time compensation plan, as distinguished from the benefits otherwise payable under this act;
(v) "Short time compensation plan" means a plan submitted by an employer for approval by the director under which the employer requests the payment of short time compensation to employees in an affected unit of the employer to avert layoffs;
(vi) "Unemployment compensation" means the benefits payable under this act other than short time compensation and includes any amounts payable pursuant to an agreement under any federal law providing for compensation, assistance or allowances with respect to unemployment;
(vii) "Usual weekly hours of work" means the usual hours of work for full-time or part-time employees in the affected unit when that affected unit is operating on the unit's regular basis, not to exceed forty (40) hours and not including hours of overtime work.
27-3-802. Participation in the short time compensation program; director approval.
(a) An employer seeking to participate in the short time compensation program shall submit a signed written short time compensation plan in a form acceptable to the department for approval by the director. No plan shall be approved under this article unless the employer is in good standing with the department.
(b) The department shall develop an application form for an employer to request approval of a short time compensation plan and an approval process. The director may approve a short time compensation plan only if the plan:
(i) Describes the affected unit covered by the plan, including the number of full-time and part-time employees in the unit and the percentage of employees in the unit covered by the plan;
(ii) Identifies each employee in the affected unit by name, social security number and any other information required by the director to identify the plan participants;
(iii) Provides a description of how employees in the affected unit will be notified of the employer's participation in the short time compensation plan, including how the employer will notify those employees in a collective bargaining unit as well as any employees in the affected unit who are not in a collective bargaining unit. If the employer is unable to provide advance notice to employees in the affected unit, the employer shall explain in the application why it is not feasible to provide the notice required under this paragraph;
(iv) Identifies the usual weekly hours of work for the employer's employees in the affected unit and the specific percentage by which the employees' hours shall be reduced during all weeks covered by the plan. A short time compensation plan shall only be approved if the percentage by which the employees' hours will be reduced is not less than ten percent (10%) and not more than sixty percent (60%). If the plan includes any week for which the employer regularly provides no work then the week shall be identified by the employer;
(v) Certifies that if the employer provides health and retirement benefits to any employee whose usual weekly hours of work are reduced under the short time compensation plan, the benefits will continue to be provided to employees participating in the short time compensation program under the same terms and conditions as though the usual weekly hours of work of such employee had not been reduced or to the same extent as other employees not participating in the short time compensation program. In addition, the following shall apply:
(A) For defined benefit retirement plans, the hours that are reduced under the short time compensation plan shall be credited for purposes of participation, vesting and accrual of benefits as though the usual weekly hours of work had not been reduced. The dollar amount of employer contributions to a defined contribution plan that are based on a percentage of compensation may be less due to the reduction in the employee's compensation;
(B) A short time compensation plan may satisfy the certification requirement under this paragraph when a reduction in health and retirement benefits scheduled to occur during the duration of the plan will be applicable equally to employees who are not participating in the short time compensation program and to those employees who are participating.
(vi) Certifies that the aggregate reduction in work hours is in lieu of layoffs. The plan shall include an estimate of the number of employees who would have been laid off in the absence of the short time compensation plan;
(vii) Certifies that the employer agrees to furnish reports to the department relating to the administration of the plan and authorizes the department to access all records necessary for the director to assess a short time compensation plan for approval and to monitor and evaluate the administration of the plan. The employer shall also agree to follow any other directives necessary for the department to implement the plan and which are consistent with the requirements of this article;
(viii) Certifies that the employer's participation in the short time compensation plan and the plan's implementation are consistent with the employer's obligations under applicable federal and state laws;
(ix) Certifies that the plan shall expire not later than the end of the twelfth full calendar month after the effective date of the plan;
(x) Satisfies any other requirements specified by the department that the United States secretary of labor determines to be appropriate for purposes of a short time compensation program.
27-3-803. Approval of a short time compensation plan.
The director shall approve or deny a short time compensation plan submitted by an employer within thirty (30) days of receipt of the plan and promptly notify the employer of the decision. A decision denying a plan shall clearly identify the reasons for the denial. The director's decision shall be final. An employer whose plan is not approved shall be allowed to submit another short time compensation plan for approval in accordance with rules specified by the commission.
27-3-804. Effective date and duration of the short time compensation plan.
(a) An approved short time compensation plan shall be effective on the date that is mutually agreed upon by the employer and the director. The plan shall expire at the end of the twelfth full calendar month after the plan's effective date or an earlier date proposed in the approved short time compensation plan. The effective date and expiration date of an approved plan shall be specified in a notice of approval provided to the employer by the department.
(b) If a short time compensation plan is revoked by the director under W.S. 27-3-806, the plan shall terminate on the date specified in the director's written order of revocation.
(c) An employer may terminate a short time compensation plan at any time upon written notice to the director as specified by rule of the commission. Upon receipt of such notice from the employer, the director shall promptly notify each employee of the affected unit of the termination date. An employer may submit a new application to participate in another short time compensation plan at any time after the expiration or termination of a previous plan.
27-3-805. Modification of an approved short time compensation plan.
(a) An employer may request a substantial modification of an approved short time compensation plan by submitting a written request to the department. The request shall specify the proposed provisions to be modified and explain why the modification is appropriate. Subject to subsection (b) of this section, the director shall approve or deny in writing the proposed modification within twenty (20) days of receipt and promptly notify the employer.
(b) The director may approve a substantial modification request under subsection (a) of this section based on conditions that have changed since the short time compensation plan was originally approved provided that the modification is consistent with and supports the purposes for which the plan was initially approved. A modification shall not extend the expiration date of the original plan. If the director approves a substantial plan modification request, the effective date of the modification shall be included in the notice provided to the employer.
(c) An insubstantial plan modification shall not require director approval but the employer shall promptly report every change to the plan in writing to the director. If the director determines that the reported change is substantial, the department shall require the employer to submit a substantial plan modification request. The director may revoke an employer's plan if the employer fails to meet the reporting requirement under this subsection.