Prohibition on the Non-Charging of Benefits

PURPOSE: This rule implements an amendment to the Federal Unemployment Tax Act made by Section 252 of the federal Trade Adjustment Assistance Extension Act of 2011, Public Law No. 112-40, mandating that states prohibit the non-charging of certain overpaid unemployment benefits to employers’ separate experience rating accounts. (1) No employer’s account shall be relieved of charges relating to a payment that was erroneously made from the unemployment compensation fund if the division determines that— (A) The erroneous payment was made because the employer or an agent of the employer was at fault for failing to respond timely or adequately to a written request from the division for information relating to a claim for unemployment benefits; and (B) The employer or an agent of the employer has established a pattern of failing to respond timely or adequately to requests made under subsection (A) of this section. (2) For the purpose of this rule, the following terms shall mean: (A) “Adequately,” responses to requests for information must include sufficient facts for the deputy to reach the conclusion ultimately and finally made in regard to the claim; (B) “Erroneous payment,” a payment that, but for the failure by the employer or the agent of the employer to respond timely and adequately to a written request from the division for information with respect to the claim for unemployment benefits, would not have been made; (C) “Pattern of failing,” repeated documented failure on the part of the employer or the agent of the employer to respond, taking into consideration the number of instances of failure in relation to the total volume of requests. An employer or an agent of the employer failing to respond as described under subsection (1)(A) of this rule shall not be determined to have engaged in a pattern of failure if the number of the failures during the year prior to the request is fewer than two (2) or less than two percent (2%) of the requests, whichever is greater; and (D) “Timely,” information must be postmarked or received by the division on or before the date provided in the request for information. (3) For good cause shown, the employer or employer agent shall be excused from timely or adequately responding to a written request for information. For purposes of this rule, good cause shall be limited only to those circumstances that are wholly beyond the control of the employer or employer agent and then only if the employer or employer agent acts as soon as possible. The employer or employer agent shall bear the burden of proving good cause to the satisfaction of the division. (4) Determinations by the division prohibiting the relief of charges under this rule shall be subject to appeal or protest as other determinations of the division with respect to the charging of employer accounts. (5) This rule shall apply to erroneous payments established on or after October 1, 2013. AUTHORITY: sections 288.220 and 288.390, RSMo 2000.* Emergency rule filed Aug. 22, 2013, effective Oct. 1, 2013, expired March 29, 2014. Original rule filed Aug. 22, 2013, effective Feb. 28, 2014. *Original authority: 288.220, RSMo 1951, amended 1955, 1961, 1963, 1967, 1971, 1995.