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Indicates Matter Stricken
Indicates New Matter
Indicates Matter Stricken
Indicates New Matter
INTRODUCED
March 2, 2005
H. 3682
S. Printed 3/2/05--H.
Read the first time March 2, 2005.
EXPLANATION OF IMPACT:
The Employment Security Commission indicates that no fiscal impact would result from the passage of the proposed legislation pertaining to unemployment benefits for an individual who refuses to take a drug test or tests positive during a drug test for certain substances.
This bill states that individuals must receive unemployment benefits when unemployed as a direct result of domestic abuse, and specifies that benefits paid in connection with domestic abuse must not be charged to the account of an individual employer. However, State agencies, as well as most other governmental entities, are reimbursable accounts. As such, they are covered by a federal law that requires they reimburse the Unemployment Trust Fund for any draws made by employees of their organization. Therefore, state and local governments would have to bear the cost of unemployment benefits of a person unemployed as a result of domestic abuse.
The number of individuals receiving unemployment benefits as a result of domestic abuse is difficult to determine. The Employment Security Commission estimates that at most, 10 individuals in the state received unemployment benefits as a result of domestic abuse last year. No more than two of these are expected to be state employees. The maximum amount of unemployment benefits an individual can receive is $7,592. Therefore, the maximum fiscal impact this Bill is estimated to be $15,184 for all sources of funds (state, federal and other). Based on this methodology, the Employment Security Commission estimates the impact as minimal and that it could be absorbed.
LOCAL GOVERNMENT IMPACT:
See response above.
Approved By:
Don Addy
Office of State Budget
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 41-35-125 SO AS TO ALLOW BENEFITS FOR INDIVIDUALS UNEMPLOYED AS A DIRECT RESULT OF DOMESTIC ABUSE, 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, TO AMEND SECTION 41-35-120, 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 41-35-130, RELATING TO UNEMPLOYMENT PAYMENTS NOT CHARGEABLE TO A FORMER EMPLOYER, SO AS TO PROVIDE THAT BENEFITS PAID IN CONNECTION WITH A DOMESTIC ABUSE-RELATED JOB LOSS MUST NOT BE CHARGED TO THE ACCOUNT OF A CONTRIBUTING EMPLOYER.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 1, Chapter 35 of Title 41 of the 1976 Code is amended by adding:
"Section 41-35-125. (A) Notwithstanding the provisions of Section 41-35-120, an individual is eligible for waiting week credit and for unemployment compensation if the commission finds that the individual has left work voluntarily or has been discharged because of circumstances directly resulting from domestic abuse and:
(1) reasonably fears future domestic abuse at or en route to the workplace;
(2) needs to relocate to avoid future domestic abuse; or
(3) reasonably believes that leaving work is necessary for his safety or the safety of his family.
(B) When determining if an individual has experienced domestic abuse for the purpose of receiving unemployment compensation, the commission shall require him to provide documentation of domestic abuse including, but not limited to, police or court records or other documentation of abuse from a shelter worker, attorney, member of the clergy, or medical or other professional from whom the individual has sought assistance.
(C) All documentation or evidence of domestic abuse acquired by the commission pursuant to this section must be kept confidential unless consent for disclosure is given, in writing, by the individual."
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. 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 provides a blood, hair, or urine specimen during a drug test administered on behalf of the employer, which tests positive for illegal drugs or legal drugs used unlawfully, 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.
(iv) For purposes of this item, 'unlawfully' means without a prescription, or outside the scope of that prescribed by a board-certified physician.
(c) If an insured worker makes an admission 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 4. Section 41-35-130 of the 1976 Code is amended by adding:
"(i) Benefits paid to an individual pursuant to Section 41-35-125 must not be charged to the account of a contributing employer."
SECTION 5. This act takes effect upon approval by the Governor.
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