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H. 3327
STATUS INFORMATION
General Bill
Sponsors: Rep. Cato
Document Path: l:\council\bills\ggs\22898htc05.doc
Introduced in the House on January 19, 2005
Currently residing in the House Committee on Labor, Commerce and Industry
Summary: Employment security law
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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1/19/2005 House Introduced and read first time HJ-13
1/19/2005 House Referred to Committee on Labor, Commerce and Industry
HJ-14
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND SECTION 41-35-120, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DISQUALIFICATION FOR BENEFITS OF AN INSURED WORKER UNDER THE EMPLOYMENT SECURITY LAW, SO AS TO PROVIDE THE WORKER IS INELIGIBLE FOR BENEFITS IF HE REFUSES TO TAKE A DRUG TEST OR TESTS POSITIVE DURING A DRUG TEST FOR CERTAIN SUBSTANCES, TO PROVIDE THE REQUIREMENTS FOR DRUG TESTING AND TO ALLOW INFORMATION RECEIVED BY AN EMPLOYER IN A DRUG-TESTING PROGRAM TO BE RECEIVED IN EVIDENCE IN A PROCEEDING DETERMINING ELIGIBILITY FOR UNEMPLOYMENT COMPENSATION AND TO AMEND SECTION 41-31-125, RELATING TO THE ASSIGNMENT OF THE EMPLOYMENT BENEFIT RECORD OF AN EMPLOYMENT UNIT IN A BUSINESS ACQUISITION OR REORGANIZATION WITH CONTINUITY OF CONTROL FOR PURPOSES OF THE SOUTH CAROLINA EMPLOYMENT SECURITY LAW, SO AS TO REQUIRE A VIOLATION TO BE KNOWING RATHER THAN WILFUL AND TO DEFINE "KNOWINGLY" AND "KNOWING" AND TO REQUIRE THE SOUTH CAROLINA EMPLOYMENT SECURITY COMMISSION TO ESTABLISH PROCEDURES TO IDENTIFY THE TRANSFER OF A BUSINESS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 41-35-120(2) of the 1976 Code is amended to read:
"(2) Discharge for cause connected with the employment.
(a) If the commission finds that he has been discharged for cause connected with his most recent work prior to filing a request for determination of insured status or a request for initiation of a claim series within an established benefit year, with ineligibility beginning with the effective date of the request, and continuing not less than five nor more than the next twenty-six weeks, (in addition to the waiting period), with a corresponding and mandatory reduction of the insured worker's benefits to be calculated by multiplying his weekly benefit amount by the number of weeks of his disqualification. The ineligibility period must be determined by the commission in each case according to the seriousness of the cause for discharge. A charge of discharge for cause connected with the employment may not be made for failure to meet production requirements unless the failure is occasioned by wilful failure or neglect of duty. 'Cause connected with the employment' as used herein shall require in this item requires more than a failure in good performance of the employee as the result of inability or incapacity.
(b) An insured worker is considered to have been discharged for cause pursuant to this item, and is ineligible for benefits if the:
(i) company has communicated a policy prohibiting the illegal use of drugs, the violation of which may result in termination; and
(ii) insured worker fails or refuses to provide a specimen pursuant to a request from the employer, or otherwise fails or refuses to cooperate by providing an adulterated specimen; or
(iii) insured worker makes an admission to the employer that he uses, has used, or is using illegal drugs; or that he uses, has used, or is using legal drugs unlawfully. For purposes of this item, 'unlawfully' means without a prescription, or outside the scope of that prescribed by a board-certified physician; or
(iv) insured worker provides a blood, hair, or urine specimen during a drug test administered on behalf of the employer, which tests positive for illegal drugs, provided:
(A) the sample was collected and labeled by a licensed health care professional or another individual authorized to collect and label test samples by federal or state law, including law enforcement personnel; and
(B) the test was performed by a laboratory certified by the National Institute on Drug Abuse, the College of American Pathologists, the State Law Enforcement Division, or another recognized authority; and
(C) any initial positive test was confirmed on the specimen using the gas chromatography/mass spectrometry method, or an equivalent or more accurate scientifically accepted methods approved by the National Institute on Drug Abuse.
(c) Notwithstanding the provisions of item (2)(b)(iii), if an insured worker makes an admission as defined in it pursuant to the employer's policy, which provides that voluntary admissions made before the employer's request to the employee to submit to testing may protect an employee from immediate termination, then the admission is inadmissible for purposes of this section as long as the:
(A) employer has communicated a written policy, which provides protection from immediate termination for employees who voluntarily admit prohibited drug use before the employer's request to submit to a test; and
(B) employee makes the admission specifically pursuant to the employer's policy.
(d) Information, interviews, reports, and drug-test results, written or otherwise, received by an employer through a drug-testing program may be used or received in evidence in proceedings conducted pursuant to the provisions of this title for the purposes of determining eligibility for unemployment compensation, including any administrative or judicial appeal."
SECTION 2. A. Section 41-31-125(D) of the 1976 Code, as added by Act 245 of 2004, is amended to read:
"(D) An employing unit that willfully knowingly attempts to violate the provisions of this section must be assessed a penalty in an amount equal to the greater of one thousand dollars or ten percent of the tax determined by the commission to be due for each report that is submitted in violation of this section. For the purposes of this section, the terms 'knowingly' or 'knowing' mean having actual knowledge of or acting with deliberate ignorance of or reckless disregard for the prohibition in this section. This penalty may be recovered in the manner provided in Article 3 of this chapter for the collection of other penalties. Officers and directors of the enterprise comprising the employing unit are individually liable for the penalties assessed pursuant to this paragraph.
A contribution tax return preparer who violates this section or provides advice to an employing unit that results in a willful knowing violation of the provisions of this section is liable to a penalty of not less than one thousand dollars nor more than ten thousand dollars for each report submitted in violation of this section. This penalty may be recovered by the commission in an appropriate civil action in any court of competent jurisdiction.
As used in this section, a 'contribution tax return preparer' is a person who prepares for compensation, or who employs one or more persons to prepare for compensation, any contribution and wage report or report of change in the status of an employing unit required by this chapter or any claim for credit for a tax imposed by this chapter. For purposes of this definition, the completion of a substantial portion of a report is treated as the preparation of the entire report. The term does not include a person merely because the person furnishes typing, reproducing, or other mechanical assistance, prepares a report of the employer, or an officer or employee of the employer, by whom the person is regularly and continuously employed, prepares as a fiduciary a report for any person, or represents a taxpayer in a hearing regarding an issue arising under this chapter."
B. Section 41-31-125 of the 1976 Code, as added by Act 245 of 2004, is amended by adding a subsection at the end to read:
"(E) The commission shall establish procedures to identify the transfer or acquisition of a business for purposes of this section."
SECTION 3. This act takes effect upon approval by the Governor.
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