Reference is to Printer's Date 05/28/15-H.
Amend the bill, as and if amended, by deleting all after the enacting words and inserting:
/ SECTION 1. Section 41-27-265(A) and (B) of the 1976 Code is amended to read:
"Section 41-27-265.
(A)(1) Solely for purposes of
this title section, 'corporate
officer' shall mean services performed by a
person appointed or otherwise serving as an officer for a
corporation pursuant to Article 4, Chapter 8, Title 33, a
person who owns twenty-five percent or more of the shares of a
corporation, or a person who otherwise exercises an ownership
interest in a corporation. Solely for the purposes of this
title, services performed by a corporate officer shall
not be considered services in
employment. However, unless a
corporation may elect elects not to
cover not less than all of its corporate
officers under subsection (B) item (2).
If an employer does not elect elects not
to cover its corporate officers under subsection
(B) item 2, the employer must notify its
corporate officers in writing that they are ineligible for
unemployment benefits. However, if the employer fails to provide
notice, the individual's status as a corporate officer is
unchanged and the person remains ineligible
eligible for unemployment benefits subject to all
other requirements for eligibility in Chapters 27 through 41 of
this title.
(B)(2) An
employer may elect not to cover its corporate officers by
providing the department with a written election that all
services performed by its corporate officers shall not be
deemed to constitute employment for all purposes related to
Chapters 27 through 41 of this title for at least two calendar
years. Upon written approval of the election by the
department, the services shall be deemed to constitute
employment for purposes of Chapters 27 through 41 of this title
on and after the date of approval. Services covered under this
subsection shall cease to be deemed employment as of January
first of any calendar year subsequent to the two calendar year
period, only if the employer files a written application for
termination of coverage with the department before January
fifteenth of that year To make the election, a
corporation with qualifying corporate officers pursuant to item
(1) must register with the department all qualifying corporate
officers exempt from coverage. The registration must be in a
format prescribed by the department. Registration forms received
and approved by the department on or before January fifteenth
must become effective the first day of the calendar year and
must remain in effect for at least two consecutive calendar
years. Registration forms received and approved by the
department after January fifteenth, must become effective
January first of the following year, and must remain in effect
for at least two consecutive calendar years. Exemptions from
coverage shall not be eligible for a refund or credit for
contributions paid for corporate officers before the effective
date of the exemption.
(B)(1) Solely
for the purposes of this title, services performed by a person
who has at least a twenty-five percent ownership interest in a
business entity formed pursuant to the laws of this State, other
than a corporation, shall be considered services in employment
unless the entity elects not to cover a person with at least a
twenty-five percent ownership interest in the entity.
(2)
A person who has an ownership interest of at
least twenty-five percent in a business entity formed pursuant
to the laws of this State, other than a corporation, may elect
not to cover himself by providing the department with a written
election that all services performed by the person shall not be
deemed to constitute employment for all purposes related to
Chapters 27 through 41 of this title for at least two calendar
years. The election must be in a format prescribed by the
department. Election forms received and approved by the
department on or before January fifteenth must become effective
the first day of the calendar year and must remain in effect for
at least two consecutive calendar years. Registration forms
received and approved by the department after January 15, 2015,
must become effective January 1, 2016, and must remain in effect
for at least two consecutive calendar years. Exemptions from
coverage must not be retroactive and the business entity
requesting the exemption shall not be eligible for a refund or
credit for contributions paid for persons before the effective
date of the exemption.
(3)
A newly formed business entity with qualifying
persons pursuant to items (1) and (2) must register with the
department each person it elects to exempt within thirty
calendar days after becoming an employer under Chapters 27
through 41 of this title. Registration forms received and
approved by the department must become effective on and after
the date of approval and must remain in effect for at least two
consecutive calendar years."
SECTION 2. Chapter 41, Title 41 of the 1976 Code is amended to read:
Section 41-41-10.
Whoever makes a false statement or representation knowing
it to be false or who knowingly fails to disclose a material
fact to obtain or to increase any benefits or other payment
under Chapters 27 through 41 of this title or under an
employment security or unemployment compensation law of any
other state, the Federal Government, or of a foreign government,
either for himself or for any other person, shall be punished by
a fine of not less than twenty fifty nor
more than one two hundred fifty
dollars or by imprisonment for not longer than thirty days and
each such false statement or representation or failure to
disclose a material fact shall constitute a separate offense.
Section 41-41-20. (A)
A claimant found by the department knowingly
to have made a false statement or who knowingly failed to
disclose a material fact when filing a compensable claim to
establish his right to or increase the amount of his benefits is
ineligible to receive benefits for any week for which the claim
was filed and is ineligible to receive further benefits for not
less than ten and not more than fifty-two consecutive weeks as
determined by the department according to the circumstances of
the case, these weeks to commence with the date of the
determination.
(B) If the department
finds that a fraudulent misrepresentation has been made by a
claimant with the object of obtaining benefits under this
chapter to which he was not entitled, in addition to any other
penalty or prosecution provided under this chapter, the
department may make a determination that there must be deducted
from benefits to which the claimant might become entitled during
this present benefit year or the next subsequent benefit year,
or both, an amount not less than two and one-half times
his weekly benefit amount and not more than his maximum benefit
amount payable in a benefit year, as determined under Chapter
35. This deduction takes effect on the date of the
determination. An appeal from this determination must be made in
the manner prescribed in Article 5, Chapter 35.
Section 41-41-30. Any
employing unit or any officer or agent of an employing unit or
any other person who makes a false statement or representation
knowing it to be false or who knowingly fails to disclose a
material fact to prevent or reduce the payment of benefits to
any individual entitled thereto or to avoid becoming or
remaining subject thereto or to avoid or reduce any contribution
or other payment required from any employing unit under Chapters
27 through 41 of this title shall be punished by a fine of not
less than twenty fifty nor more than
one two hundred fifty dollars or
by imprisonment for not longer than thirty days, and each such
false statement or representation or failure to disclose a
material fact shall constitute a separate offense.
Section 41-41-40.
(A)(1)
A person who has received a sum as benefits under Chapters
27 through 41 while conditions for the receipt of benefits
imposed by these chapters were not fulfilled or while he was
disqualified from receiving benefits is liable to repay the
department for the unemployment compensation fund a sum equal to
the amount received by him.
(2)
If full repayment of benefits, to which an individual was
determined not entitled, has not been made, the sum must be
deducted from future benefits payable to him under Chapters 27
through 41, and the sum must be collectible in the manner
provided in Sections 41-31-380 through 41-31-400 for the
collection of past due contributions.
(3)
The department may attempt collection of overpayments
through the South Carolina Department of Revenue in accordance
with Section 12-56-10, et seq. If the overpayment is collectible
in accordance with Section 12-56-60, the department shall add to
the amount of the overpayment a collection fee of not more than
twenty-five fifty dollars for each
collection attempt to defray administrative costs.
Notwithstanding another provision of law, a final decision of
the department or court establishing the character and amount of
overpayment is final for all purposes and proceedings.
(4)
The department may attempt collection of overpayment
through the federal Unemployment Compensation Treasury Offset
Program (UCTOP). If the overpayment is collectible, the
department shall add to the amount of the overpayment a
collection fee not to exceed the administrative costs set by
this program.
(5)
Notwithstanding any other provision of this section, no
action to enforce recovery or recoupment of any overpayment may
begin after five years from the date of the final determination
for nonfraudulent overpayments nor after eight years from the
date of the final determination for fraudulent overpayments.
(B)(1) A person who is
overpaid any amounts as benefits under Chapters 27 through 41 is
liable to repay those amounts, except as otherwise provided by
this subsection.
(2)
Upon written request by the person submitted to the
department within the statutory appeal period from the issuance
of the determination of overpayment, the department may waive
repayment if the department finds that the:
(a)
overpayment was not due to fraud, misrepresentation, or
wilful nondisclosure on the part of the person;
(b)
overpayment was received without fault on the part of the
person; and
(c)
recovery of the overpayment from the person would be
contrary to equity and good conscience.
(3)
Decisions denying waiver requests are subject to the
appeal provisions of Chapter 35.
(C) A person who has
received a sum as benefits under the comparable unemployment law
of any other state while conditions imposed by that law were not
fulfilled or while he was disqualified from receiving benefits
by that law is liable to repay the department for the
corresponding unemployment compensation fund of the other state
a sum equal to the amount received by him if the other state has
entered into an Interstate Reciprocal Overpayment Recovery
Agreement with the State and has furnished the department with
verification of the overpayment as required by the agreement.
Recovery of overpayments under this subsection are not subject
to the provisions of subsections (A)(3) and (B).
(D) Upon the
determination of fraudulent overpayments by the department, an
employer from whose account the overpayment was debited must be
credited for the amount of the overpayment regardless of the
outcome of the action for recoupment or recovery of the
overpayment. This section shall not apply to employers whose
accounts are subject to the provisions of Sections 41-31-810 or
41-31-620.
Section 41-41-45. (A)
Notwithstanding any other provision of law,
if the department determines that an improper payment from its
unemployment compensation fund or from any federal unemployment
compensation fund was made to any individual due to a false
statement or failure to disclose a material fact pursuant to
Sections 41-41-10 and 41-41-20, the department will assess a
monetary penalty of twenty-five
thirty-three percent of the amount of the
overpayment.
(B) The notice of the
determination or decision informing the individual of the
overpayment must include:
(1)
the claimant's appeal rights;
(2)
the penalty amount;
(3)
an explanation of the reason for the overpayment; and
(4)
the reason the penalty has been applied.
(C) The recovered
amounts shall be applied with priority to:
(1)
the principal amount of the overpayment to the
unemployment compensation fund;
(2)
sixty percent of the monetary penalty to the unemployment
compensation fund;
(3)
the remaining forty percent of the monetary penalty to
promote unemployment compensation integrity; and
(4)
any remaining amounts to interest.
(D) Offset of future
unemployment insurance benefits shall not be applied to the
monetary penalty or interest associated with an overpayment.
(E) The monetary
penalty will be assessed on any fraudulent overpayment
determined by the department after October 21,
2013.
Section 41-41-50. An
employing unit or person who wilfully violates a provision of
Chapters 27 through 41 of this title or an order, rule, or
regulation under this title, the violation of which is made
unlawful or the observance of which is required under the terms
of these chapters, is liable to a penalty of
one two thousand dollars, to be
recovered by the department in an appropriate civil
action in a court of competent jurisdiction action
in the South Carolina Administration Law Court, and also is
guilty of a misdemeanor and, upon conviction, must be punished
by a fine of not less than twenty fifty
dollars but not more than one two
hundred fifty dollars or imprisonment for not longer than
thirty days, and, with regard to both civil and criminal
penalties, each day the violation continues is considered a
separate offense."
SECTION 3. This act takes effect upon approval by the Governor. The provisions contained in SECTION 1 shall retroactively apply to contribution rates calculated and imposed on or after January 1, 2015. Where the application of SECTION 1 would result in the reduction of contribution rates on an employer, the department shall credit that amount against future contributions from that employer until the credit is exhausted. /
Renumber sections to conform.
Amend title to conform.