Coverage of Indian Tribes

PURPOSE: This rule implements the federally mandated coverage of Indian tribes under the Missouri Employment Security Law, Chapter 288, RSMo. (1) Definitions. As used in this rule, except as otherwise required for the content, the following terms shall have the meanings ascribed: (A) Director—The administrative head of the Division of Employment Security. (B) Division—The Division of Employment Security. (C) Indian tribe—The meaning given to such term in section 3306 of the Federal Unemployment Tax Act (26 U.S.C. 3306). (D) Employer—Includes any Indian tribe for which service in employment as defined in section 288.034, RSMo is performed. (E) Employment—Includes service performed in the employ of an Indian tribe, provided such service is excluded from employment as defined in the Federal Unemployment Tax Act solely by reason of section 3306(c)(7) of the Federal Unemployment Tax Act, and is not otherwise excluded from employment under Chapter 288, RSMo. For purposes of this rule, the exclusions from employment in subsection 9 of section 288.034, RSMo shall be applicable to services performed in the employ of an Indian tribe. (2) Benefits. Benefits based on service in employment of an Indian tribe shall be payable in the same amount, on the same terms and subject to the same conditions as benefits payable on the basis of other service subject to Chapter 288, RSMo. The provisions of subsection 3 of section 288.040, RSMo pertaining to services performed at an educational institution while in the employ of an “educational service agency” shall apply to services performed in an educational institution or educational service agency wholly owned and operated by an Indian tribe or tribal unit. (3) Contributions. Indian tribes or tribal units (subdivisions, subsidiaries or business enterprises wholly owned by such Indian tribes) subject to this chapter shall pay contributions under the same terms and conditions as all other subject employers, unless they elect to pay into the state unemployment fund amounts equal to the amount of benefits attributable to service in the employ of the Indian tribe. An Indian tribe and all tribal units of such Indian tribe shall be jointly and severally liable for any and all contributions, payments in lieu of contributions, interest, penalties, and surcharges owed by the Indian tribe and all tribal units of such Indian tribe. (4) Payments in Lieu of Contributions. Indian tribes electing to make payments in lieu of contributions must make such election in the same manner and under the same conditions as provided in subsection 3 of section 288.090, RSMo pertaining to state and local governments and nonprofit organizations subject to Chapter 288, RSMo. Indian tribes will determine if reimbursement for benefits paid will be elected by the tribe as a whole, by individual tribal units, or by combinations of individual tribal units. Termination of an Indian tribe’s coverage pursuant to subsection (C) of this section shall terminate the election of such Indian tribe and any tribal units of such Indian tribe to make payments in lieu of contributions. (A) Indian tribes or tribal units will be billed for the full amount of benefits attributable to service in the employ of the Indian tribe or tribal unit on the same schedule as other employing units that have elected to make payments in lieu of contributions. (B) Any Indian tribe or tribal unit that elects to become liable for payments in lieu of contributions shall be required, prior to the effective date of its election, to post with the division a surety bond issued by a corporate surety authorized to do business in Missouri in an amount equivalent to the contributions or payments in lieu of contributions for which the Indian tribe or tribal unit was liable in the last calendar year in which it accrued contributions or payments in lieu of contributions, or one hundred thousand dollars ($100,000), whichever amount is the greater, to ensure prompt payment of all contributions or payments in lieu of contributions, interest, penalties and surcharges for which the Indian tribe or tribal unit may be, or becomes, jointly and severally liable pursuant to this chapter. (C) Failure of the Indian tribe or tribal unit to maintain the required surety bond, including the posting of an additional surety bond or a replacement surety bond within ninety (90) days of being directed by the division, will cause services performed for such Indian tribe to not be treated as “employment” for purposes of Chapter 288, RSMo. (D) The director may determine that any Indian tribe that loses coverage under subsection (C) of this section, may have services performed for such tribe again included as “employment” for purposes of Chapter 288, RSMo if all contributions, payments in lieu of contributions, penalties, interest, and surcharges have been paid. Upon reinstatement of coverage under this subsection, an Indian tribe or any tribal unit may elect, in accordance with the provisions of this section, to make payments in lieu of contributions. (E) If an Indian tribe fails to maintain the required surety bond by posting an additional surety bond or a replacement surety bond within ninety (90) days of being directed by the division, the director will immediately notify the United States Internal Revenue Service and the United States Department of Labor. (F) Notices of surety bond deficiency to Indian tribes or their tribal units shall include information that failure to post an additional surety bond or a replacement surety bond within the prescribed time frame will cause: 1. The Indian tribe to be liable for taxes under the Federal Unemployment Tax Act; 2. The Indian tribe to be excepted from the definition of “employer,” as provided in section (1) of this rule, and services in the employ of the Indian tribe, as provided in section (1) of this rule, to be excepted from “employment.” (5) Failure to Make Payments. Failure of the Indian tribe or tribal unit to make any payments required in Chapter 288, RSMo, including assessments of interest and penalty, within ninety (90) days of receipt of the bill will cause services performed for such Indian tribe to not be treated as “employment” for purposes of Chapter 288, RSMo. (A) The director may determine that any Indian tribe that loses coverage under this section, may have services performed for such tribe again included as “employment” for purposes of Chapter 288, RSMo if all contributions, payments in lieu of contributions, penalties, interest, and surcharges have been paid. INDUSTRIAL RELATIONS (B) If an Indian tribe fails to make required payments (including assessments of interest and penalty) within ninety (90) days of a final notice of delinquency, the director will immediately notify the United States Internal Revenue Service and the United States Department of Labor. (C) Notices of payment and reporting delinquency to Indian tribes or their tribal units shall include information that failure to make full payment within the prescribed time frame will cause: 1. The Indian tribe to be liable for taxes under the Federal Unemployment Tax Act; 2. The Indian tribe to be excepted from the definition of “employer,” as provided in section (1) of this rule, and services in the employ of the Indian tribe, as provided in section (1) of this rule, to be excepted from “employment.” (6) Extended Benefits. Extended benefits paid that are attributable to service in the employ of an Indian tribe and not reimbursed by the federal government shall be financed in their entirety by such Indian tribe. AUTHORITY: section 288.220, RSMo 2000.* Emergency rule filed June 13, 2002, effective July 1, 2002, expired Dec. 27, 2002. Original rule filed June 13, 2002, effective Dec. 30, 2002. *Original authority: 288.220, RSMo 1951, amended 1955, 1961, 1963, 1967, 1971, 1995.