20110525-IR-646100464FRA Adds 646 IAC 5 for the purpose of the administration of the Indiana Employment and Training Services Act. Repeals 646 IAC 3. Effective 30 days after filing with the Publisher.
- TITLE 646 DEPARTMENT OF WORKFORCE DEVELOPMENT
Final Rule LSA Document #10-464(F)
DIGEST
Adds646 IAC 5 for the purpose of the administration of the Indiana Employment and Training Services Act. Repeals646 IAC 3 . Effective 30 days after filing with the Publisher.
646 IAC 3-1-1 ;646 IAC 3-1-2 ;646 IAC 3-1-6 ;646 IAC 3-1-9 ;646 IAC 3-2-1 ;646 IAC 3-2-2 ;646 IAC 3-2-3 ;646 IAC 3-2-4 ;646 IAC 3-2-5 ;646 IAC 3-2-6 ;646 IAC 3-2-7 ;646 IAC 3-3-1 ;646 IAC 3-3-2 ;646 IAC 3-4-4 ;646 IAC 3-4-6 ;646 IAC 3-5-2 ;646 IAC 3-5-4 ;646 IAC 3-6-2 ;646 IAC 3-6-3 ;646 IAC 3-6-5 ;646 IAC 3-7-1 ;646 IAC 3-7-2 ;646 IAC 3-7-4 ;646 IAC 3-7-5 ;646 IAC 3-7-6 ;646 IAC 3-7-7 ;646 IAC 3-7-8 ;646 IAC 3-7-9 ;646 IAC 3-8-1 ;646 IAC 3-8-2 ;646 IAC 3-8-3 ;646 IAC 3-8-5 ;646 IAC 3-8-6 ;646 IAC 3-8-7 ;646 IAC 3-8-9 ;646 IAC 3-8-10 ;646 IAC 3-8-11 ;646 IAC 3-8-12 ;646 IAC 3-8-13 ;646 IAC 3-8-14 ;646 IAC 3-8-15 ;646 IAC 3-9-2 ;646 IAC 3-9-5 ;646 IAC 3-9-7 ;646 IAC 3-10-12 ;646 IAC 3-10-14 ;646 IAC 3-10-16 ;646 IAC 3-10-23 ;646 IAC 3-11 ;646 IAC 3-12-2 ;646 IAC 3-12-8 ;646 IAC 3-12-12 ;646 IAC 3-12-19 ;646 IAC 3-13-2 ;646 IAC 3-13-3 ;646 IAC 3-13-4 ;646 IAC 3-13-5 ;646 IAC 3-13-6 ;646 IAC 3-15-5 ;646 IAC 5
SECTION 1.646 IAC 5 IS ADDED TO READ AS FOLLOWS:
ARTICLE 5. INDIANA EMPLOYMENT AND TRAINING SERVICES ACT; ADMINISTRATION
Rule 1. Definitions
Authority:646 IAC 5-1-1 ApplicabilityIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 1. (a) The definitions in this rule apply throughout this article.
(b) The definitions in(Department of Workforce Development;IC 22-4 ,IC 22-4.1 , andIC 22-4.5 apply throughout this article unless otherwise specifically defined in this article.646 IAC 5-1-1 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-1-2 "American vessel" definedIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 2. "American vessel" means any vessel:(Department of Workforce Development;(1) documented or numbered under the laws of the United States; or(2) that is neither documented or numbered under the laws of the United States nor documented under the laws of any foreign country, if its crew is employed solely by one (1) or more citizens or residents of the United States, or corporations organized under the laws of the United States or any state.646 IAC 5-1-2 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-1-3 "Approved training" definedIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 3. (a) "Approved training" means training when the claimant is enrolled in:(1) Workforce Investment Act (WIA) services; or(2) training approved by the department.
(b) Training may be approved regardless of whether it is funded by the department or by the claimant.(Department of Workforce Development;646 IAC 5-1-3 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-1-4 "Employee" definedIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-8-1 ;IC 22-4.1
Sec. 4. "Employee" means any individual performing personal services, which constitute employment under(Department of Workforce Development;IC 22-4-8-1 , for remuneration.646 IAC 5-1-4 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-1-5 "Full time" definedIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 5. "Full time" means that number of hours that are customarily considered full time prevailing in a particular industry.(Department of Workforce Development;646 IAC 5-1-5 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-1-6 "Governmental entity" definedIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 6. "Governmental entity" means an instrumentality of:(Department of Workforce Development;(1) the state; or(2) one (1) or more political subdivisions of the state.646 IAC 5-1-6 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-1-7 "Instructional" definedIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 7. "Instructional" means services that consist of:(Department of Workforce Development;(1) teaching, tutoring, or lecturing;(2) directing or supervising the instructional activities of others; or(3) counseling, advising, or otherwise determining curriculum, courses, and academic pursuits for students.646 IAC 5-1-7 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-1-8 "Instrumentality" definedIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 8. "Instrumentality" means a legal entity organized to carry on some function of government for the state or a political subdivision, and is an independent legal entity with the power to hire, supervise, and discharge its employees. Generally, an instrumentality may sue and be sued, enter into a contract, and hold or transfer property in its own name.(Department of Workforce Development;646 IAC 5-1-8 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-1-9 "Job-attached" definedIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 9. "Job-attached" means a relationship between an employer and an employee in which the employee is not actively performing services for the employer, but is still connected to the employer through the payment of remuneration in the form of supplemental unemployment insurance benefits, or by remaining covered under the employer's health benefits plan.(Department of Workforce Development;646 IAC 5-1-9 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-1-10 "Officer or member of the crew" definedIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 10. "Officer or member of the crew" means the master or officer in charge of the vessel, however designated, and every individual subject to the authority of the master or officer in charge serving on board and contributing in any way to the operation and welfare of the vessel.(Department of Workforce Development;646 IAC 5-1-10 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-1-11 "Part-time worker" definedIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 11. "Part-time worker" means an individual who:(Department of Workforce Development;(1) works fewer than the customarily scheduled full-time hours of an employer; and(2) has assented through agreement, policy, or practice to work the fewer than full-time hours.646 IAC 5-1-11 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-1-12 "Political subdivision" definedIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 12. (a) "Political subdivision" means a:(1) county;(2) city;(3) town;(4) village:(5) school; or,(6) sanitation, utility, reclamation, improvement, drainage, irrigation, flood control, or similar district.
(b) Organizations such as libraries and hospitals may be integral parts of cities, counties, or other political subdivisions. If so, coverage of the organization would depend upon the coverage of the political subdivision of which the organization is a part. The organization may be a political subdivision itself, or it may be a private nonprofit organization.(Department of Workforce Development;646 IAC 5-1-12 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-1-13 "Principal administrative" definedIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 13. "Principal administrative" means all executive, managerial, or administrative services performed for an educational institution.(Department of Workforce Development;646 IAC 5-1-13 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-1-14 "Professional employer organization" or "PEO" definedIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 14. "Professional employer organization" or "PEO" means any entity that contracts to provide the nontemporary, ongoing employee workforce of a client under a written agreement, and that under the agreement, and in fact:(Department of Workforce Development;(1) has a right to hire and terminate the employees who perform services for the client;(2) sets the rate of pay of the employees, whether or not through negotiations;(3) has the obligation to and pays the employees from its own accounts;(4) has a general right of direction and control over the employees, including corporate officers, which right may be shared with the client to the degree necessary to allow the client to:(A) conduct its business;(B) meet any fiduciary responsibility; or(C) comply with any applicable statutory or regulatory requirements;(5) with respect to all employees to whom it pays wages under an agreement with a client business entity:(A) assumes responsibility for the unemployment insurance coverage;(B) files all required reports;(C) pays all required contributions or reimbursements for which it is liable; and(D) otherwise complies withIC 22-4 , this article, or any other state or federal laws or regulations relating to unemployment insurance that are applicable to employers on behalf of the client; and(6) provides written notice of the agreement between the PEO and the client to the employees.646 IAC 5-1-14 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-1-15 "Remuneration" definedIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-4-1 ;IC 22-4.1
Sec. 15. "Remuneration" has the same meaning set forth in(Department of Workforce Development;IC 22-4-4-1 ; however, the term specifically includes payments of supplemental unemployment insurance benefits and payments by an employer for an employee's health insurance benefit plan.646 IAC 5-1-15 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-1-16 "Research" definedIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 16. "Research" means any study or investigation in a field of science or knowledge.(Department of Workforce Development;646 IAC 5-1-16 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-1-17 "Sick pay" and "sickness or accident disability payment" definedIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 17. (a) "Sick pay" means payment made to an employee during periods of temporary absence due to illness or injury, if the employer anticipates that the employee will return to service.
(b) "Sickness or accident disability payment" means payment made to or on behalf of an individual after the individual's employment relationship has been severed by disabling sickness or accident, and the employer anticipates that the employee will not return to the employment.(Department of Workforce Development;646 IAC 5-1-17 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-1-18 "Vessel" definedIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 18. In maritime service, "vessel" means watercraft or other contrivances used as a means of transportation on water. The term includes dredges used for navigation and transportation in deepening and removing obstructions from channels, rivers, or other waterways.(Department of Workforce Development;646 IAC 5-1-18 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Rule 2. Employer Rights, Responsibilities, and Liability
Authority:646 IAC 5-2-1 Reports and contributionsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 1. (a) Every employer subject toIC 22-4 shall file quarterly wage and contribution reports in the form and manner prescribed by the department. These reports are due on or before the last day of the month next following the quarter for which the reports are filed. Contributions are due and payable at the time these reports are filed, except for those employers that have elected to become liable for payments in lieu of contributions.
(b) Reports must show the total remuneration paid for covered employment as well as wages subject to contribution. The amount of payroll subject to contribution for any year is termed "wages" and is limited as follows:(1) "Wages", as used in this section, shall not include remuneration in excess of the taxable wage base established by law paid to an individual by a single employer in a calendar year with the following exceptions:(A) In cases of an acquisition of the organization, trade, or business of an employer, or the acquisition of a distinct and segregable portion of the business, the remuneration paid to an individual by the predecessor will be combined with remuneration paid to the same individual by the successor in the same calendar year in which the acquisition occurs to determine the taxable wage base limitation.(B) The remuneration paid by an employer to an employee in another state will be combined with the remuneration paid by the same employer to the same employee in the same calendar year in this state to determine the taxable wage base limitation.(2) Each employer must file a wage report, concurrently with the filing of the quarterly contribution report. The wage report must show the total remuneration paid for covered employment to each employee in any calendar quarter. Total remuneration includes taxable wages as well as remuneration in excess of taxable wages paid to each individual in a calendar year.
(c) Reports and contributions from an employer are required for the entire calendar year in which the employer first becomes subject toIC 22-4 . The due date of contributions and reports for the quarter or quarters preceding the quarter in which the employing unit qualifies as an employer is the date upon which the employing unit actually acquired the status of an employer within the meaning ofIC 22-4 ; however, interest and penalty shall not accrue on past quarters until thirty (30) days after such date.
(d) If the due date for a report falls on a Sunday, or a federal holiday, then that due date will roll over to the next department business day. In all other situations, the due date is the final date indicated on the report for a timely submission.
(e) Contributions required under subsection (c) will not apply to those employers that have elected to become liable for payments in lieu of contributions. However, reports are required of all employers regardless of election.(Department of Workforce Development;646 IAC 5-2-1 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-2-2 Filing of reportsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 2. (a) Each employer shall ascertain the Social Security number of each employee and include the employee's Social Security number in any report filed with the department.
(b) All reports shall be filed on the forms required by the department.
(c) Reports shall be filed electronically if required by the department.(Department of Workforce Development;646 IAC 5-2-2 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-2-3 Quarterly reports; nothing to report; errorsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 3. (a) If an employer has incurred no payroll, and no contributions are due for a particular quarter, the employer's report may be marked "Nothing to Report" in lieu of completing the report with zeros. Quarterly contribution reports must be sent to the department on a quarterly basis until the employer terminates or inactivates its account.
(b) No contribution report submitted to the department will be returned to the employer for correction. If an error has been made in filing a contribution report, the employer shall submit an explanation for the error on the form required by the department.
(c) If an employer owes additional contributions as a result of a correction, the employer must remit all additional contributions due.
(d) If the employer has paid more contributions than owed, according to the corrected report, the employer's account will show a credit balance. If the credit balance is greater than the amount due on the subsequent quarterly report, the employer may file a claim for refund in the form and manner prescribed by the department.
(e) A claim for refund must be executed by the person to whom the claim is alleged to be due. A claim for refund by a corporation must be made in the name of the corporation, and executed by an officer thereof. A fiduciary will be required to furnish a certified copy of appointment to accompany a claim for refund on contributions not paid in fiduciary capacity.(Department of Workforce Development;646 IAC 5-2-3 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-2-4 Estimation of wagesIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-11-4 ;IC 22-4.1
Sec. 4. (a) Pursuant to the department's authority set forth inIC 22-4-11-4 , if an employer fails to timely submit quarterly reports, the department will investigate and, if necessary, estimate employer wages, and resulting contributions. The following circumstances relate to a wage estimation by the department:(1) An employer's contacting other state agencies regarding unemployment issues does not constitute the submission of reports required by the department.(2) An employer's failure to claim certified mail notices sent by the department does not constitute a lack of notice to the employer.
(b) Once an auditor has determined that there is sufficient reason to begin the estimation process, the department will send the employer a penalty letter by certified mail, return receipt requested. The penalty letter will:(1) state the quarter or quarters and year or years of the missing report or reports; and(2) inform the employer that it has fifteen (15) days to produce the reports or the department will estimate the data.If the employer does not submit the reports in question, the department will estimate the employer wages and compute the resulting contributions, penalty, and interest for the covered quarters.
(c) After the department has done a wage estimation, and liability computation, the department will send the employer a notice and demand for payment by certified mail, return receipt requested. The notice and demand sets forth the quarter or quarters and year or years in question, and the contributions, penalties, and interest due to the department. The penalties include:(1) a twenty-five dollar ($25) fine for failure to file the wage report within ten (10) days of the agency's written request; and(2) a twenty-five dollar ($25) fine for the failure to file the contribution report within ten (10) days of the agency's written request.The employer has fifteen (15) days from the mailing date of the notice of demand within which to file a timely protest.
(d) With regard to employer protests, the following:(Department of Workforce Development;(1) If the employer files the actual reports in a timely manner, the department will adjust the employer's account to reflect the information provided. However, the twenty-five dollar ($25) penalties for failure to timely file the reports will not be removed.(2) If the employer files the actual reports after the expiration of the time for a timely protest, the estimation can be adjusted upward based upon the actual information submitted by the employer; however, it will not be adjusted downward unless the employer meets the following two (2) statutory conditions:(A) The employer produces true and actual reports.(B) The employer establishes reasonable cause for its failure to timely file the required reports.646 IAC 5-2-4 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-2-5 Unemployment contribution ratesIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-11-2 ;IC 22-4.1
Sec. 5. (a) An employer will be subject to the penalty rate, as established underIC 22-4-11-2 , if as follows:(1) The employer fails to file any required quarterly report.(2) The employer fails to pay the contributions, penalty, and interest charges owed for past quarters, or owed by a predecessor account, within ten (10) days of the date specified on Form 1171 (Merit Rate Delinquency Notice), which is sent certified mail by the department. The merit rate delinquency notice is not a protestable notification.
(b) Employers that no longer hold new employer status, and are not subject to the penalty rate, qualify for an experience-based merit rate. An employer's merit rate contribution is based upon the following:(Department of Workforce Development;(1) The employer's experience account status as of the June 30 computation date.(2) The employer's payroll in the thirty-six (36) months immediately preceding the computation date.646 IAC 5-2-5 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-2-6 Merit rate processIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 6. (a) Merit rate calculations begin with the allocation of the pool account to employers in early July. Employers receive a mutualized benefit charge statement, which is a nonprotestable, informational document.
(b) In mid-September, any employer with outstanding liabilities, missing quarterly contribution reports, or outstanding predecessor liabilities is sent a nonprotestable merit rate delinquency notice by certified mail, return receipt requested. This notification provides the employer an opportunity to avoid being assigned a penalty rate for the next calendar year by making the payments due, or by submitting the missing reports, within ten (10) days of the mailing date of the notice.
(c) A merit rate notice is sent by first class mail to the last known address of each employer no later than March 30 of the rate year. This notice provides the employer with:(Department of Workforce Development;(1) its experience balance;(2) its prior three (3) fiscal years of taxable payroll;(3) a voluntary payment offer if eligible; and(4) any requirements that have not been met.An employer who has not met the listed requirements, or whose account is at the lowest available rate, is not eligible for a voluntary buy down. An employer has the right to protest its merit rate notice. The protest must be filed within fifteen (15) days of the mailing date of the notice. The protest right is limited to whether the employer's contribution rate was calculated correctly and does not extend to department determinations that were independently protestable when issued.646 IAC 5-2-6 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-2-7 Transfers of Indiana operationsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 7. (a) An employing unit, whether or not an employer at the time of transfer, that:(1) acquires all or a portion of an employer's trade or business (including the employer's workforce), which results in the continuance of an organization, trade, or business; or(2) merges, incorporates, or reorganizes the employing unit's business;immediately qualifies as a covered employer underIC 22-4 and assumes the position of the predecessor with respect to all the resources and liabilities of the predecessor's experience account. In order for this section to be applicable, the transfer must result in a substantial change in ownership and management. The successor/acquirer must complete State Form 2837 (Report to Determine Status), and the predecessor/disposer must complete State Form 46799 (Report of Transfer – Complete Sale). The deadline for filing is the earlier of thirty (30) days from the dispositions date or ten (10) days from a request for information by the department.
(b) An employing unit, whether or not an employer at the time of transfer, that:(Department of Workforce Development;(1) purchases a distinct and segregable portion of an organization, trade, or business; and(2) retains employees of that business;will be entitled to consider the wages reported by the predecessor/disposer when computing the tax base per employee, per calendar year. The predecessor/disposer must transfer a proportionate portion of its experience balance, and the merit rate, to the successor/acquirer. This must be done by the earlier of thirty (30) days from the date of disposition or not later than ten (10) days after notification from the department. The employers must complete State Form 23299 (Report of Transfer-Partial Sale). Failure to complete this form may result in a department-mandated flat fifty percent (50%) transfer of the disposer's experience balance to the acquirer's experience balance.646 IAC 5-2-7 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-2-8 Calculation and payment of contributions; municipal utilitiesIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-11-2 ;IC 22-4.1
Sec. 8. (a) If a city or town had previously been a covered employer to the extent of its municipal utilities, the utilities will pay contributions at their computed rate, but the rate will not exceed the prescribed rate underIC 22-4-11-2 (e).
(b) If, by statute, a municipal utility is set apart as a separate political subdivision, such utility will retain their experience account and assigned rate, and(Department of Workforce Development;IC 22-4-11-2 (d) will apply to the new account assigned to the city or town for the purpose of reporting nonutility employment.646 IAC 5-2-8 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-2-9 Accelerated payment of contributions under Schedule "A"IC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 9. (a) The department may accelerate contribution payments underIC 22-4-10-1 (a). When the department determines that contribution payments should be accelerated under the conditions set forth by statute, each subject employer will be notified by regular mail not fewer than thirty (30) days prior to the date the accelerated contribution is due.
(b) The employer:(1) will estimate the amount of the accelerated contribution payment based upon its projection of its estimated payroll for the accelerated quarter; and(2) must remit that amount in whole or in a percentage of the whole as determined by the department.
(c) Any amount of the estimated accelerated payment that exceeds the amount of contribution actually owed by the employer for the quarter to which the acceleration applies will be applied as a credit against that employer's future liability.
(d) If the amount of the estimated accelerated contribution remitted is less than the contribution actually owed by the employer for the accelerated quarter, the difference between the estimated contribution paid and the actual contribution owed must be paid at the time the contribution would normally be due for the accelerated quarter.
(e) All enforcement procedures that apply to regular contributions, including the interest and penalty provisions of(Department of Workforce Development;IC 22-4-29-1 , will apply to accelerated contributions.646 IAC 5-2-9 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-2-10 Reimbursable employers; payments in lieu of contributionsIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-10-1 ;IC 22-4.1
Sec. 10. Any employer that makes an election to reimburse benefit charges under(Department of Workforce Development;IC 22-4-10-1 will continue to be liable for payments in lieu of contributions until it files a written request to terminate its election. If the department approves the election, the employer will continue to be liable for payments of benefits that applied to an employee's base period falling in quarters in which the employer's election to reimburse was in effect.646 IAC 5-2-10 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-2-11 Termination or transfer of business; notice; final report; attachment of successor's assetsIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-32-23 ;IC 22-4.1
Sec. 11. (a) Where the status of an employer is changed by cessation or disposition of a business or an appointment of a receiver, trustee, trustee in bankruptcy, or other fiduciary, the employer shall immediately notify the department, and contributions with respect to wages for employment up to and including the date of the change of status, and with respect to amounts that would otherwise constitute wages as defined inIC 22-4 , except for nonpayment thereof, are immediately due and payable. The employer shall immediately file necessary contribution and wage reports, showing all remuneration paid per employee for employment occurring in the calendar quarter in which the change of status occurred, and all previous unreported contributions and remuneration. Reports covering the calendar quarter in which the change of status occurred shall be marked "final report".
(b) Whenever an employer disposes of its organization, trade, or business, in whole or in part, it shall be the duty of both the employer and its successor to notify the department of the disposition on the forms prescribed by the department. If the disposing employer is a corporation, the employer shall follow the dissolution procedure described in(Department of Workforce Development;IC 22-4-32-23 .646 IAC 5-2-11 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-2-12 Eligibility for separate employer accountIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-10-4 ;IC 22-4.1
Sec. 12. (a) For purposes ofIC 22-4-10-4 , any employing unit that is wholly or partially owned by another employing unit will not be eligible for a separate experience account if:(1) the employing units are so closely related that it would be appropriate to disregard the corporate structure under Indiana law; or(2) one (1) of the employing units has failed to assume all of the requisite employment responsibilities necessary to provide its employees with employment.
(b) Employing units not eligible for separate accounts are responsible for ensuring that their wages are reported under a single account.(Department of Workforce Development;646 IAC 5-2-12 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-2-13 Responsibilities of related entitiesIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 13. (a) Where employing units are related because one (1) employing unit has created or acquired a separate employing unit with no existing experience account, the employing units are responsible for determining whether they are eligible for separate accounts before requesting a new account.
(b) Where employing units with properly acquired experience accounts become related and ineligible for separate accounts through acquisition or merger, the entities are responsible for reporting the acquisition or merger to the department. The department shall combine the experience balance of the two (2) accounts once it receives the report.(Department of Workforce Development;646 IAC 5-2-13 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-2-14 Rate recalculation and penaltiesIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 14. If employing units that are not eligible for separate accounts obtain and use separate accounts, the department shall, once the error has been discovered, retroactively recalculate the employing units' experience rate as if the employing units had reported using a single account. The recalculation must be made not later than four (4) completed calendar years subsequent to the date that the contributions, penalties, or interest would have become due, except that this limitation shall not apply to any contributions, penalty, or interest that should have been paid with respect to any incorrect report filed with the department which report was known or should have been known to be incorrect by the employing unit. In addition, the employing units may be subject to the following penalties:(Department of Workforce Development;(1) Penalties and interest as set forth inIC 22-4-29-1 .(2) An increased merit rate underIC 22-4-11-2 .(3) Criminal penalties set forth inIC 22-4-34-2 .646 IAC 5-2-14 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-2-15 Department notices to employersIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 15. (a) All notices to employers from the department shall be sent to one (1) of the following:(1) The employer's facility at which the claimant last worked.(2) An address designated by the employer. The designation must be entered into the Employer Self Service (ESS) application by an employee of the employer with the authority to designate a correspondence agent. The following factors will be considered in determining where employer notices will be sent:(A) When the job location is other than the employer's place of business, the employer's notice will be sent to the business address.(B) If the employer elects to be represented by an agent or representative, and has properly entered the designation in the ESS application, as stated in this subdivision, the employer's notice will be sent to the address designated in the ESS application.
(b) All notices to employers originating in the central office of the department, including quarterly contribution reports, delinquent notices, and any other such notices concerning penalties, interest, or other information required to properly administerIC 22-4 , will be mailed to the:(1) corporate office of the employer;(2) official place of business; or(3) the representative designated under subsection (a);except notices that reflect legal action, which will be mailed without exception to the corporate office or the official place of business.
(c) All notices of:(1) a new claim;(2) a reopened claim;(3) a claim of potential liability; or(4) benefit charges;will be mailed to only one (1) address to be designated by the employer. Employers that report wages under employer location numbers may elect to have the notices mailed to each separate establishment, the corporate office, or the designated representative.
(d) Additionally, the department may make all notices available electronically. The department may send the notices set forth in this section solely through electronic means if the employer elects to receive notices solely through electronic means.(Department of Workforce Development;646 IAC 5-2-15 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-2-16 Posted notificationIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 16. All employers liable for the payment of unemployment contributions must prominently display a poster, or posters, regarding unemployment insurance. Upon request, an employer must provide to employees information necessary for them to obtain their full rights and benefits under(Department of Workforce Development;IC 22-4 .646 IAC 5-2-16 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Rule 3. Seasonal Employers and Employment
Authority:646 IAC 5-3-1 Seasonal employer statusIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-7-3 ;IC 22-4.1
Sec. 1. (a) For an employer to be designated as a seasonal employer underIC 22-4-7-3 , the employer must submit an application to the department on the prescribed forms, attesting to the seasonal nature of the business or a portion of the business.
(b) Once an application for seasonal status filed under(Department of Workforce Development;IC 22-4-7-3 has been approved by the department, the effective date is the first day of the calendar quarter beginning after the date of the seasonal determination.646 IAC 5-3-1 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-3-2 Seasonal employment, worker definitions; report requirementsIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-8-4 ;IC 22-4.1
Sec. 2. (a) Seasonal employment means service performed for an approved seasonal employer during the approved seasonal period of less than twenty-six (26) weeks.
(b) A seasonal worker is an individual employed by an approved seasonal employer who is employed for less than twenty-six (26) weeks in approved seasonal employment.
(c) An approved seasonal employer will be required to submit information on department forms detailing the number of positions classified as seasonal within the approved portion or portions of such business. Also included will be the opening and closing dates of each seasonal operation.(Department of Workforce Development;646 IAC 5-3-2 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-3-3 Seasonal employment determination appealIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-32 ;IC 22-4.1
Sec. 3. Any interested party may file an appeal to a determination regarding an approval or disapproval of an election to become a seasonal employer. The appeal must be filed within fifteen (15) days after the determination to obtain review in accordance with(Department of Workforce Development;IC 22-4-32 .646 IAC 5-3-3 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-3-4 Loss of seasonal statusIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 4. A seasonal employer shall give written notice to the department when the seasonal operation exceeds twenty-five (25) weeks in a calendar year, within thirty (30) days after completion of the twenty-sixth week of operation. The seasonal employer shall automatically lose its seasonal status for that portion of its operation at the end of the calendar quarter, and wages paid to individuals in that portion of the employer's operation will be useable as regular wages to establish claims.(Department of Workforce Development;646 IAC 5-3-4 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-3-5 Reinstatement of seasonal statusIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 5. An employer that loses seasonal status may apply for reinstatement in any calendar year after the year in which its designation as a seasonal employer was revoked.(Department of Workforce Development;646 IAC 5-3-5 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-3-6 Notification to seasonal employees of employment limitationsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 6. (a) An approved seasonal employer must notify a seasonal employee in writing of the following:(1) The employee has been hired for a specific temporary seasonal period as determined by the department.(2) The employee is performing services in seasonal employment for an approved seasonal employer.(3) Employment will customarily be limited to the beginning and ending dates of the seasonal period as determined and approved by the department.
(b) An employee will be considered notified at the date of hiring if the employee is notified on or before the date on which the employee begins services for the employer in any season for which seasonal status has been granted to a seasonal employer.(Department of Workforce Development;646 IAC 5-3-6 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-3-7 Seasonal employment benefit paymentsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 7. (a) Benefits may be paid to individuals in seasonal employment on the basis of services performed in seasonal employment only if the claim is filed within the operating period of the approved seasonal employment.
(b) If the claim is filed outside the operating period, benefits may be paid on the basis of nonseasonal wages only.(Department of Workforce Development;646 IAC 5-3-7 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-3-8 Seasonal employment wage reportingIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 8. Seasonal employers are required to keep an accurate account of wages paid to seasonal workers within the seasonal period as determined by the department. The department will furnish seasonal employers the special wage reporting forms with coding for seasonal employees. Wages will continue to be reported on a quarterly basis.(Department of Workforce Development;646 IAC 5-3-8 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Rule 4. Professional Employer Organizations
Authority:646 IAC 5-4-1 Initial and wage reporting requirements; separate location accounts; notice of terminationIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 1. (a) Each PEO that enters into a written agreement to provide services to a business entity during any calendar quarter shall submit to the department, no later than the due date for the quarterly unemployment contribution report relating to that quarter, a report identifying the following:(1) The name of the business entity to which services are provided.(2) The location of the business entity's operations.(3) The unemployment insurance account number of the business entity (if any).(4) The effective date of the written agreement to provide services.
(b) For each separate client, the PEO must obtain a location code to identify the employees related to that business entity's place of operation.
(c) The PEO must include the respective client location codes with every quarterly wage or contribution report, or both, submitted to the department.
(d) Each new client of the PEO will be treated as a predecessor organization to the PEO, and the PEO will assume all rights and responsibilities normally associated with successorship with regard to each new client.
(e) A PEO shall provide the department with written notification via registered mail of the termination of a written agreement to provide services to a business entity within ten (10) business days of the termination.(Department of Workforce Development;646 IAC 5-4-1 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-4-2 Responsibility to pay unemployment contributions; resumption of liability by client business entity upon termination of agreement between PEO and clientIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 2. (a) For the duration of the agreement between a PEO and a client business entity, the PEO, as the employer of the employees whom it engages to perform services for the client, is responsible for the payment of all unemployment contributions related to the employees for which it is liable underIC 22-4 , this article, or any other state or federal laws or regulations relating to unemployment insurance that are applicable to employers on behalf of the client.
(b) Upon termination of the agreement between a PEO and a client business entity under section 1 of this rule, and proper written notice to the department, the PEO must promptly pay its outstanding liability, including contributions, interest, and penalties, that have accrued on payroll amounts paid by the PEO to employees that it formerly engaged to perform services for the client business entity, up to the date of the termination of the agreement. The PEO will remain responsible for contributions, interest, and penalties that may accrue after the date of the termination if the PEO does not promptly pay its outstanding liability and properly notify the department in writing of the termination.
(c) In the event that a PEO and a client business entity terminate their agreement, the department will treat the termination of the agreement as a partial disposition between the PEO and the client business, and the percentage of the PEO transferred will be based upon the wage records associated with the client business's specific client location code.(Department of Workforce Development;646 IAC 5-4-2 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Rule 5. Specific Types of Employment; Exempt Employers; Services Excluded from Employment
Authority:646 IAC 5-5-1 TrusteesIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 1. Individuals hired by a trustee to perform services in connection with the trust property, and who are paid from the funds of the trust, are considered in the employment of the trust, and not the trustee.(Department of Workforce Development;646 IAC 5-5-1 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-5-2 Bankruptcy trusteesIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 2. A bankruptcy trustee may be an employing unit or an employer, but remuneration paid to the individual for services rendered as a trustee in bankruptcy is not considered wages, because such trustee is not in employment.(Department of Workforce Development;646 IAC 5-5-2 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-5-3 CaddiesIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 3. A caddy who performs services for a member or guest of a golf club is not an employee of the club, although the caddy's fees are paid directly or indirectly by the club.(Department of Workforce Development;646 IAC 5-5-3 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-5-4 Minor child or spouse employed in family businessIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 4. (a) A minor child who performs services for a partnership or corporation controlled by the parents of such child is considered to be employed by the partnership or corporation, and not by the child's parent or parents, but such employment is excluded if the firm is a partnership and the parents of the child are the sole owners and members of the partnership.
(b) Services performed for an employing unit by a child or spouse of the owner do not constitute employment, but if the employing unit is a partnership, an exempt relationship must exist with each member before such services shall be deemed as excluded services.(Department of Workforce Development;646 IAC 5-5-4 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-5-5 Churches and religious organizationsIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-8-2 ;IC 22-4.1
Sec. 5. (a) As used in this rule, "church", "convention", and "association" have the meanings set forth inIC 22-4-8-2 (j)(3)(A).
(b) Service performed for a college devoted primarily to the preparation of students for the ministry is not employment, as is the service for a novitiate or a house of study training candidates to become members of a religious order.
(c) A church-related charitable organization, such as an orphanage or home for the aged, is not considered to be operated primarily for religious purposes, and service performed for such an entity is employment.
(d) UnderIC 22-4-8-2 (j)(3)(B), the exclusion of service performed by ministers in the exercise of their ministry, and by members of a religious order in performing the duties required by the order, applies only when the service is performed for nonprofit organizations required to be covered by the state law.
(e) A minister is ordained, commissioned, or licensed if he or she has been vested with ministerial status in accordance with the procedure followed by the particular church denomination. However, he or she does not have to be connected with a congregation. Ministerial authority continues until revoked by the church.
(f) For purposes of this section, "exercise of the ministry" includes the following:(1) The conduct of religious worship and the ministration of sacerdotal functions.(2) Service performed in the control, conduct, and maintenance of:(A) a religious organization under the authority of a religious body constituting a church or church denomination; or(B) an organization operated as an integral agency of such a religious organization or of a church or church denomination.(3) Service performed for any organization under an assignment or designation by a church, not including cases in which a church merely helps a minister by recommending him or her for a position involving nonministerial services for an organization not connected with the church.(4) Missionary service or administrative work in the employ of a missionary organization.
(g) As established in subsection (f), service of an individual as a chaplain in an orphanage or in a home for the aged is not employment since the service is in the exercise of the individual's ministry.
(h) Service of an individual who is a member of a teaching or nursing order who is engaged in teaching or nursing is not employment, if the order requires the performance of such service.
(i) Control, conduct, and maintenance of an organization is the performance of services directing, managing, or promoting the activities of the organization.(Department of Workforce Development;646 IAC 5-5-5 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-5-6 Domestic serviceIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 6. (a) Domestic services excluded from employment are services of a household nature performed by an individual in or about the private home of the person for whom the services are performed, or are services performed in or about the club rooms or house of a local college club, or local chapter of a college fraternity or sorority, for whom the services are performed.
(b) As used in this section, "private home" means the fixed place of abode of an individual or a family.
(c) As used in this section, "local college club or local chapter of a college fraternity or sorority" does not include an alumni club or chapter.
(d) If the home is utilized primarily for the purpose of supplying board or lodging to the public as a business enterprise, the home ceases to be a private home and the services performed therein are not excluded. In addition, if the club rooms or house of a local college club, or local chapter of a college fraternity or sorority, are used primarily for such purposes, the services performed therein are not excluded.
(e) The services described in subsection (a) are not excluded if they are performed in or about:(1) rooming or lodging houses;(2) boarding houses;(3) clubs (except local college clubs);(4) hotels; or(5) commercial offices or establishments.
(f) Services performed as a private secretary, even though performed in the employer's home, are not excluded.(Department of Workforce Development;646 IAC 5-5-6 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-5-7 Agricultural laborIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-7-2 ;IC 22-4.1
Sec. 7. (a) Agricultural labor does not include services performed in connection with forestry, lumbering, or landscaping.
(b) Greenhouses and other similar structures used primarily for other purposes, such as display, storage, or fabrication of wreaths, corsages, and bouquets, do not constitute farms.
(c) Services performed for the owner or tenant or operator of one (1) or more farms in connection with the:(1) operation;(2) management;(3) conservation;(4) improvement; or(5) maintenance;of any of the farms or its tools or equipment are excluded as agricultural labor, provided the major part of the services is performed on a farm.
(d) Excluded services do not include services performed in connection with commercial canning or commercial freezing or in connection with any commodity after its delivery to a terminal market for distribution for consumption. Moreover, since the excluded services must be rendered in the actual handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivery to storage or to market, or to a carrier for transportation to market, of the commodity, the services do not include services performed as stenographers, bookkeepers, clerks, and other office employees, even though the services may be in connection with such activities, except to the extent that the services of the individuals are performed in the employ of the owner or tenant or other operator of a farm and are rendered in major part on a farm.
(e) Subsequent to December 31, 1977, the exclusion of agricultural labor does not apply to those employers meeting the requirements of(Department of Workforce Development;IC 22-4-7-2 (e).646 IAC 5-5-7 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-5-8 Product demonstratorsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 8. (a) Demonstrators:(1) who are placed by a manufacturer in department and specialty stores to aid in the sale of the specialized products of the manufacturer;(2) who are engaged by the manufacturer;(3) who are paid directly or indirectly by the manufacturer; and(4) who work under the direction of the manufacturer, although this direction may be delegated to the retailer;are employed by the manufacturer.
(b) If the retailer, not acting as an agent for the manufacturer, engages the demonstrator, and the demonstrator works under the direction of the retailer and receives remuneration directly from the retailer, the retailer is the employer.
(c) If wages are paid in part by the manufacturer and in part by the retailer, the demonstrator is employed by both the manufacturer and the retailer. Each is required to pay contributions on the part of the remuneration that they pay, provided that one (1) or both are employers under(Department of Workforce Development;IC 22-4 .646 IAC 5-5-8 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-5-9 Railroad workersIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 9. Services performed where potential unemployment benefits are payable under the Railroad Unemployment Insurance Act shall not be deemed employment within the meaning of(Department of Workforce Development;IC 22-4 .646 IAC 5-5-9 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-5-10 Insurance agents and solicitorsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 10. Services performed by an individual as an insurance agent or insurance solicitor are excluded, provided that these services are performed solely on a commission basis. If any part of an individual's remuneration for these services is a salary, none of the individual's services are excluded, and the total remuneration is included in the contribution computation.(Department of Workforce Development;646 IAC 5-5-10 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-5-11 Agent workforce lessorsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 11. The lessee of a leased workforce is the employer of the individuals in the workforce when the lessor hires and pays the individuals as the agent of the lessee.(Department of Workforce Development;646 IAC 5-5-11 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-5-12 Certain services performed with respect to property not held by the ownerIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 12. Where property is held by a mortgagee in possession, an assignee of rent, or a trustee or receiver under the mortgage, the mortgagee, the assignee, or the trustee or receiver, not the owner of the property, is the employer of individuals performing services with respect to the property.(Department of Workforce Development;646 IAC 5-5-12 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-5-13 "Partially exempt services" determinedIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-8-3 ;IC 22-4.1
Sec. 13. (a) To determine whether one-half (1/2) of the services performed in a pay period constitute employment underIC 22-4-8-3 , the department will compare the duration of the services that constitute employment to the duration of the services that do not constitute employment.
(b) For claims that involve multiple pay periods, the department may consider the average of all pay periods to determine whether the services constitute employment.
(c) This rule does not apply with respect to any services performed by the individual for an employing unit:(1) if the periods for which the employing unit makes payments of remuneration to the individual vary to the extent that there is no period for which a payment of remuneration is ordinarily made to the individual;(2) if the period for which a payment of remuneration is ordinarily made to the individual by the employing unit exceeds thirty-one (31) consecutive calendar days; or(3) during a pay period if any of such service is excepted underIC 22-4-8-3 .
(d) If, during any period for which an employing unit makes a payment of remuneration to an individual, only a portion of the individual's services constitutes employment and this rule is not applicable, contributions are due with respect to such services that constitute employment.(Department of Workforce Development;646 IAC 5-5-13 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Rule 6. Wages
Authority:646 IAC 5-6-1 Meals and lodging; valuationIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 1. (a) Costs for meals and lodging allowed by an employer as increased or additional remuneration for employees are wages subject to contribution.
(b) Where the employer provides a fixed amount to employees for meals and lodging, that fixed amount is the amount of additional remuneration.
(c) Where the employer does not provide a fixed amount to employees, the actual cost of the meals and lodging is the amount of additional remuneration.
(d) Where meals and lodging are furnished by the employer on the premises of the employer for the convenience of the employer, the value of those meals and lodging is not remuneration subject to contributions.(Department of Workforce Development;646 IAC 5-6-1 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-6-2 Wages in lieu of notice or termination allowancesIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 2. Wages in lieu of notice, or termination allowances, include amounts paid by an employer to an employee at the time of employment separation and are wages subject to contribution.(Department of Workforce Development;646 IAC 5-6-2 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-6-3 Back pay awards by the National Labor Relations BoardIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 3. (a) Awards of back pay to individuals by the National Labor Relations Board are reportable as wages for the quarter covered by the award.
(b) Payments of additional wages made pursuant to terms of the Fair Labor Standards Act are reportable as wages for the quarter covered by the payment.
(c) Awards of back pay to individuals resulting from arbitration are reportable as wages for the quarter covered by the arbitration award.(Department of Workforce Development;646 IAC 5-6-3 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-6-4 Commissions on installment paymentsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 4. Where commissions are paid to salespersons each time a purchaser makes a payment under an installment contract, the commissions shall be considered wages paid at the time that they are credited to the salesperson in the employer's financial records.(Department of Workforce Development;646 IAC 5-6-4 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-6-5 Payments to corporate officers, directors, and members of a board of directorsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 5. (a) An officer of a corporation who receives remuneration for his or her services as a corporate officer from a corporation is in employment during the entire term of his or her office, and the remuneration shall be considered as wages.
(b) A member of the board of directors of a corporation is not considered in employment, and fees paid for attendance at meetings of the board of directors shall not be deemed wages.
(c) A member of a board of directors is in employment, however, if he or she performs services for remuneration for the corporation other than those required by attendance at, and participation in, the meetings of the board of directors.
(d) The remuneration considered wages in subsection (a) shall be deemed wages paid by a PEO, and the corporate officer of a client business entity shall be deemed the employee of the PEO, when the services performed as a corporate officer are subject to a written agreement between the PEO and the client business entity, as provided in(Department of Workforce Development;646 IAC 5-1-14 .646 IAC 5-6-5 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-6-6 Payments to partnersIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 6. Payments made by a partnership to a partner are not wages. A partner is an employer and is not an employee of the partnership.(Department of Workforce Development;646 IAC 5-6-6 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-6-7 Idle time paymentsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 7. Where an employer:(Department of Workforce Development;(1) guarantees employees a minimum number of hours of employment per week; and(2) makes payments to them for idle time when they do not render services for the minimum number of hours;the payment for the idle time constitutes wages subject to contribution.646 IAC 5-6-7 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-6-8 Employee discounts on purchasesIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 8. Discounts allowed employees on the purchase of goods from the employer are not wages if the:(Department of Workforce Development;(1) purchase is optional for the employee; and(2) discounts do not constitute regular or systematic remuneration for services rendered.646 IAC 5-6-8 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-6-9 Prizes and bonusesIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 9. (a) A prize or a bonus given by an employer to an employee in cash is wages. When given in any medium other than cash, the prize or bonus will be considered wages unless it is not remuneration for employment.
(b) A prize or bonus paid in cash or in any other medium, whether or not paid as a result of a contractual obligation, shall be reported as wages for the week in which the prize or bonus is due or paid.(Department of Workforce Development;646 IAC 5-6-9 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-6-10 Promissory notesIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 10. Where an employee accepts a promissory note in lieu of wages, the:(Department of Workforce Development;(1) face amount of the note at the time it is delivered to and accepted by the employee is considered the amount of wages subject to contribution; and(2) wages are considered paid at the time of the delivery and the acceptance of the note.646 IAC 5-6-10 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-6-11 Tips and gratuitiesIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-4-2 ;IC 22-4.1
Sec. 11. (a) Tips and gratuities received by an employee from persons other than the employer, and not accounted for to the employer, are not wages. However, the amount of tips or gratuities accounted for by the employee to the employer by written statement, as required by Section 6053 of the Internal Revenue Code when the tips are in excess of twenty dollars ($20) per month, are wages within the meaning ofIC 22-4-4-2 .
(b) Where an employer does not permit tipping of employees, but rather:(Department of Workforce Development;(1) adds a certain percent to the charges made to patrons; and(2) disburses the added amounts to employees;the sums disbursed are wages and not tips.646 IAC 5-6-11 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-6-12 Traveling expenses; commission drawing accountsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 12. (a) Actual amounts advanced or reimbursed to employees for traveling expenses, which are expenses of the employer incurred by the employee in connection with the employee's position and the business of the employer, are not wages.
(b) Where an employee is allowed a drawing account against which earned commissions are credited, and the commissions earned do not equal the amounts withdrawn, and the employee is required to account to the employer for amounts overdrawn, the commissions earned, and not the amounts overdrawn, are wages subject to contribution. However, if the employee is not required to account to the employer for the amounts overdrawn, all amounts advanced to the employee are wages.
(c) In determining contributions due for a quarter, each employee is to be considered individually, and, if the expenses of an employee exceed earnings, the excess may not be credited against the contribution liability incurred by the employer by reason of wages payable to other employees of that employer.
(d) If an employee earns wages in excess of expenses in one (1) calendar quarter, contributions are due and payable on the wages. If the same employee, in a subsequent calendar quarter, incurs expenses in excess of wages, the excess shall not be taken as a credit against contributions due for a previous calendar quarter, or contributions in future months or calendar quarters, respectively.(Department of Workforce Development;646 IAC 5-6-12 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-6-13 Vacation and leave of absence payIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 13. Remuneration paid by an employer to an employee for vacation periods or leaves of absence, in the regular course of employment, is wages, and such periods of paid vacation or paid leave of absence is employment, as the employment relationship has not been terminated.(Department of Workforce Development;646 IAC 5-6-13 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-6-14 Taxable wage base; successorsIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-7-2 ;IC 22-4.1
Sec. 14. (a) When an employing unit qualifies underIC 22-4-7-2 (a) orIC 22-4-7-2 (b), the remuneration paid by the predecessor in such calendar year is combined with the remuneration paid by the successor in that same calendar year in determining when an employee has reached the taxable wage base limit.
(b) The combining of the remuneration paid to an individual by separate employers, in establishing the taxable wage base limitation, applies only in successorship cases.(Department of Workforce Development;646 IAC 5-6-14 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-6-15 Taxable wage base; out of stateIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-4-2 ;IC 22-4.1
Sec. 15. Under(Department of Workforce Development;IC 22-4-4-2 , remuneration paid to an employee in another state is considered in determining the taxable wage base limitation for a calendar year, if wages are paid to the same employee by the same employer in this state during that calendar year.646 IAC 5-6-15 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Rule 7. Unemployment Benefits
Authority:646 IAC 5-7-1 Social Security; identification of claimantIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 1. No individual will be eligible for a monetary determination of benefits without first providing the department with his or her Social Security number.(Department of Workforce Development;646 IAC 5-7-1 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-7-2 Separating and base period employer notices; protestsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 2. (a) Whenever an individual files an initial claim for unemployment benefits, the department shall issue a notice to the claimant's last employer prior to the filing of the claim, and to all of their base period employers, informing these employers of the filing of the claim, and requesting the submission of information regarding the claimant's separation from employment. This notice also informs the employers that their experience account is potentially chargeable for benefits paid to the claimant.
(b) If the claimant has been separated for any of the following reasons, the employer shall file a protest setting forth the separation circumstances, and the form of protest, from publicly available department policy, will be set forth on the employer notice:(1) Voluntarily left the employment without good cause in connection with the work.(2) Was discharged for just cause.(3) Was discharged for gross misconduct in connection with his or her work.(4) Left due to the claimant's physical condition.(5) Left to accept other employment.(6) Left to enter self-employment.
(c) An employer shall file a protest when the following circumstances exist with regard to a separated claimant; and the form of protest, from publicly available department policy, will be set forth on the employer notice:(1) The claimant is entitled to:(A) vacation pay;(B) payment in lieu of vacation;(C) standby pay; or(D) wages in lieu of notice.(2) The claimant is receiving, or will receive, retirement pay.(3) There are other circumstances, of which the employer is aware, that are potentially disqualifying for claimant benefits.
(d) An employer should not notify the department if the claimant was laid off, unless other issues, such as set forth in subsection (c), exist.
(e) An employer protest under this section must be filed with the department, as set forth on the notice, within ten (10) days of the mailing date of the notice.(Department of Workforce Development;646 IAC 5-7-2 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-7-3 Minimum weekly benefitsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 3. (a) In cases where an individual is paid the statutory minimum weekly benefit amount established underIC 22-4-12-2 , although the individual's actual weekly benefit amount computes to less than the statutory minimum, the additional benefits paid shall not increase that individual's maximum benefit amount.
(b) If the individual is partially unemployed, the amount of benefits computed and paid to the individual will be the difference between the statutory minimum and the individual's deductible income for a particular week.
(c) In cases where an individual's actual computed weekly benefit amount is less than the statutory minimum, and a penalty suspension has been imposed under(Department of Workforce Development;IC 22-4-15-1 orIC 22-4-15-2 , the statutory weekly benefit amount language, relating to the lifting of the suspension, refers to the individual's actual computed weekly benefit amount, not to the statutory minimum.646 IAC 5-7-3 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-7-4 Backdating, cancellation, or withdrawal of claimIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 4. Once a valid claim has been filed by an individual, during the benefit period established that individual cannot cancel, withdraw, or change the time of filing of the initial claim, a reopened claim, or an additional claim, for any purpose, other than administrative error on the part of department staff.(Department of Workforce Development;646 IAC 5-7-4 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Rule 8. Separation from Employment
Authority:646 IAC 5-8-1 Partial or part-total unemploymentIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 1. (a) A claimant who applies for benefits due to partial or part-total unemployment is ineligible unless they can show that they are working less than their normal customarily scheduled hours for their regular employer.
(b) For purposes of this subsection, "normal customarily scheduled hours" means the hours to which the claimant has agreed to work. Any reduction in hours that regularly occurs as a matter of practice, policy, or procedure of which the claimant was aware and to which the claimant has agreed will not be considered partial or part-total unemployment.
(c) For purposes of this subsection, "regular employer" means an employing unit for which the claimant has performed services in the last twenty-six (26) weeks, except as provided under federal law.(Department of Workforce Development;646 IAC 5-8-1 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-8-2 Leave of absenceIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-15-1 ;IC 22-4.1
Sec. 2. (a) Where an individual takes a voluntary leave of absence, with the consent of the employer, it shall not constitute voluntarily leaving work without good cause within the meaning ofIC 22-4-15-1 . However, no benefit or waiting period weeks may be accumulated during that period, unless the individual terminates the leave of absence by notifying the employer and becomes available for work.
(b) A leave of absence for a disability granted to an individual by an employer pursuant to the employer's rule or pursuant to terms of a collective bargaining agreement shall be deemed terminated on the day following the disability when the individual again becomes mentally and physically able to work and available for work and establishes their ability to work and availability for work.(Department of Workforce Development;646 IAC 5-8-2 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-8-3 Voluntary quit; generalIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 3. A claimant will not be considered to have voluntarily left employment for good cause in connection with the work unless the claimant can establish that a reasonable individual in the same or similar circumstances would also have left the employment.(Department of Workforce Development;646 IAC 5-8-3 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-8-4 Voluntary quit; good causeIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 4. (a) A voluntary quit due to excessive discipline, or inappropriate comments or conduct by managers or coworkers, will not constitute good cause in connection with the work unless the claimant can establish that an individual in the same or similar circumstances would reasonably believe that the:(1) conduct was severe and pervasive;(2) conduct:(A) was motivated by the claimant's:(i) race;(ii) age;(iii) sex;(iv) national origin; or(v) religious beliefs;or other status protected by law;(B) endangered the claimant's physical safety; or(C) endangered the claimant's mental health; and(3) claimant reported the conduct pursuant to the employer's procedures, if any, but no employer action was taken within a reasonable period of time.
(b) An individual who quits employment in anticipation of an imminent discharge does so with good cause if the:(1) claimant establishes that the discharge was imminent; and(2) employer fails to establish that the imminent discharge would have been for just cause.
(c) If an employer gives an employee the opportunity to submit a resignation from employment, rather than be discharged, and the employee resigns, this is a quit in lieu of discharge, and the separation will be analyzed under the discharge for just cause criteria, as the employer is the moving party in the separation.(Department of Workforce Development;646 IAC 5-8-4 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-8-5 Discharge; work rulesIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 5. A work rule will be found to be reasonable if it:(Department of Workforce Development;(1) is lawful;(2) is related to the employer's business operations;(3) is intended by the employer to broadly apply to classes, categories, or all employees;(4) does not create a harsh or unconscionable requirement for employees.646 IAC 5-8-5 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-8-6 Discharge; breach of dutyIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 6. (a) In order to qualify as a breach of duty for unemployment insurance purposes, the duty must be:(1) reasonably connected to the work;(2) reasonably owed to the employer by the employee; and(3) of such a nature that a reasonable employee would recognize a violation of the duty, and would understand that such a violation of the duty would subject the individual to discharge.
(b) A breach of duty reasonably owed to an employer includes, but is not limited to, conduct which establishes that the claimant:(Department of Workforce Development;(1) damaged the employer's trust and confidence in the claimant's ability to effectively perform the job;(2) willfully failed to meet the employer's reasonable expectation;(3) chose a course of action that the claimant knew, or should have known, would negatively impact the employer's financial interests;(4) demonstrated an intentional or substantial disregard for the employer's interests;(5) intentionally or knowingly injured, or attempted to injure, the employer's financial interests;(6) intentionally chose a course of action that pitted the claimant's interests against the employer's interests to the detriment of the employer; or(7) showed carelessness or negligence to such a degree, or with such recurrence, as to cause damage to the employer's interests.646 IAC 5-8-6 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Rule 9. Nonseparation Issues Related to Claims
Authority:646 IAC 5-9-1 Registration requirement; failure to registerIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-14-2 ;IC 22-4.1
Sec. 1. (a) Registration required underIC 22-4-14-2 (a)(1) is accomplished through enrollment in the Indiana Career Connect (ICC) Database.
(b) Once a claimant files a claim for unemployment insurance benefits, the department will automatically start an account for the claimant in ICC, based on the information the claimant entered for their Uplink account.
(c) The claimant should then log into ICC, using the login information from the filing of their claim, and complete his or her profile and create a resume. The claimant can also upload an existing resume.
(d) If for some reason a claimant fails to become registered within ten (10) days of filing an initial claim for benefits, the claimant will be denied unemployment insurance benefits. The claimant will not be eligible for benefits until the requirement has been completely met.
(e) If a claimant has a work search waiver, which includes department approved training, a return to work date of sixty (60) days or less, or is an active member of a union hiring hall, the claimant does not have to be registered in ICC, and does not have to report their work search efforts each week. However, they are still required to complete a weekly online voucher.(Department of Workforce Development;646 IAC 5-9-1 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-9-2 Reporting requirementsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 2. (a) A claimant is not eligible for benefits in any week unless they:(1) have filed a claim for benefits; and(2) report to the department each week that they continue to meet all eligibility requirements.
(b) A claimant's claim for benefits, and weekly report to the department, must be filed in the form and manner prescribed by the department.
(c) If a claimant does not timely file a claim for benefits, or weekly report, the department will deny benefits for that week and will refuse to accept late-filed claims and reports unless the:(1) claimant has failed to file a weekly report because the claimant's eligibility for benefits has been appealed; or(2) department finds that the claimant was unable to file a claim, or weekly report, that week due to administrative error on the part of the department.
(d) The department's refusal to accept untimely filings is not appealable.(Department of Workforce Development;646 IAC 5-9-2 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-9-3 Effort to secure full-time workIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 3. To establish an effort to secure full-time work, a claimant is required to search for three (3) positions in each week for which benefits are claimed.(Department of Workforce Development;646 IAC 5-9-3 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-9-4 Report of job searchIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 4. A claimant must report on their job search on a weekly basis via submission of the online claim form, or in any other manner as required by the department.(Department of Workforce Development;646 IAC 5-9-4 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-9-5 Suitable workIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-15-2 ;IC 22-4.1
Sec. 5. (a) For purposes of this section, the department will determine whether work is suitable pursuant to the criteria set forth inIC 22-4-15-2 .
(b) In order to maintain benefit eligibility, when the department directs, a claimant must apply for any available position.
(c) Suitable work must be accepted, if the offer is received by an individual at any time after their separation from employment.
(d) Failure to accept suitable work, without good cause, will result in the individual being ineligible for benefits.(Department of Workforce Development;646 IAC 5-9-5 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Rule 10. Appellate Procedure
Authority:646 IAC 5-10-1 Conduct of claims adjudicatorsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 1. Claims adjudicators are to observe standards of conduct consistent with their position. These standards include, but are not limited to, the following:(Department of Workforce Development;(1) Upholding the integrity of the agency.(2) Complying with statutory confidentiality provisions.(3) Avoiding impropriety or the appearance of impropriety in all activities.(4) Performing the duties of their position diligently and impartially.646 IAC 5-10-1 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-2 Request for hearing before administrative law judge; notice of hearingIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 2. (a) Any interested party in the claim of an employee shall be entitled to a hearing before an administrative law judge relative to the merits of the claim.
(b) "Interested party" means the following:(1) The claimant who filed the claim for benefits.(2) Any employer whose account may be affected by the adjudication of the claim.(3) Any employer in the claimant's base period.(4) Any employer:(A) who has made an offer of work to the claimant; or(B) to whose employment the claimant has been furnished a referral.(5) The claimant's last, separating employer prior to the filing of the claim.
(c) A party appealing a determination issued by the department shall file its appeal in the manner prescribed by the department. The appealing party shall include with its appeal a copy of the determination being appealed.
(d) Upon scheduling a hearing on an appeal, a notice of hearing shall be mailed to the following:(Department of Workforce Development;(1) The claimant at their last known address of record listed with the department.(2) The claimant's last or separating employer.(3) Any employer involved in the appealed issue.(4) The department, if it is a party to the appealed issue.646 IAC 5-10-2 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-3 Location of administrative hearingsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 3. All hearings held before an administrative law judge shall be held by telephone, unless otherwise directed by the commissioner, the commissioner's designee, or the administrative law judge having jurisdiction over the case, or as otherwise provided in this article.(Department of Workforce Development;646 IAC 5-10-3 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-4 Administrative law judgesIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-17-15 ;IC 22-4.1
Sec. 4. (a) All administrative law judges shall be:(1) admitted to the practice of law in the state of Indiana; and(2) a member in good standing of the Indiana Bar.
(b) Administrative law judges shall observe standards of conduct consistent with their position. These standards include, but are not limited to, the following:(1) Upholding the integrity of the department.(2) Complying with statutory confidentiality provisions.(3) Avoiding impropriety or the appearance of impropriety in all activities.(4) Performing the duties of the office diligently and impartially.
(c) Administrative law judges shall abide by and follow(Department of Workforce Development;IC 22-4-17-15 to ensure the appearance of impartiality. Challenges to the impartiality of an administrative law judge shall be heard and decided by the review board.646 IAC 5-10-4 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-5 Conduct in hearings before administrative law judgesIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 5. (a) All hearings shall be conducted informally in order to determine the substantial rights of the parties. The parties may present evidence as the administrative law judge deems necessary for determining the substantial rights of the parties. The parties to the appeal may appear for themselves, by attorney, or by duly authorized agent or representative, under section 18 of this rule, and shall have the right to examine their own witnesses, present evidence, and cross-examine witnesses of the opposing party. An administrative law judge:(1) shall have the right to examine all witnesses;(2) may require the parties to produce any available evidence that the parties deem necessary for a proper determination of the case; and(3) where either party fails to appear, or where either party is not represented by an attorney or duly authorized agent, shall have the duty to examine the party's witnesses, and to cross-examine all witnesses of the other party, in order to ensure complete presentation of the case.In general, the Indiana Rules of Trial Procedure and the Indiana Rules of Evidence shall govern proceedings before an administrative law judge or the review board.
(b) In general, hearsay evidence shall not be considered; however, an administrative law judge shall consider all hearsay evidence as would be admissible under common law or the Indiana Rules of Evidence. Hearsay evidence that is not admissible under a recognized hearsay exception may be admitted, but shall not be entitled to the same evidentiary weight as direct testimony. Hearsay evidence properly objected to, but not falling within a recognized hearsay exception, that is admitted into the record shall not form the sole basis for a decision by an administrative law judge or the review board.(Department of Workforce Development;646 IAC 5-10-5 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-6 Continuances; dismissalsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 6. (a) An administrative law judge or the review board may continue any hearing upon its own motion, or upon request by any party to the appeal. The request must be received not later than three (3) days before the date of the hearing, unless the requesting party can demonstrate an unforeseen emergency. The request must set forth good cause for the granting of the request. A copy of the request must be served upon all parties to the hearing. A request for a continuance of a hearing pending before an administrative law judge shall be filed with that administrative law judge. A request for a continuance of a hearing pending before the review board shall be filed with the chairperson of the review board.
(b) Requests for continuances for cases pending longer than sixty (60) days from the filing date of the appeal will not be granted, unless the requesting party can demonstrate an unforeseen emergency.
(c) If the appealing party in a hearing pending before an administrative law judge fails to appear for a scheduled hearing, after having received due notice, the administrative law judge shall dismiss the appeal, and the underlying, appealed determination shall be deemed final, unless the appeal is reinstated pursuant to the provisions of this rule.
(d) An administrative law judge, or the review board, may, in their discretion, dismiss any appeal that in its judgment has been abandoned by all interested parties, and the underlying, appealed determination of eligibility, or administrative law judge decision, shall be deemed final, unless the appeal is reinstated pursuant to the provisions of this rule.
(e) If an appeal pending before an administrative law judge has been dismissed as the result of the appealing party failing to appear for a scheduled hearing, the appealing party may file a request for a reinstatement of their appeal. This request must be filed with the director of unemployment insurance appeals, or the director's designee, within seven (7) days from the mailing date of the dismissal. The request must show good cause for the appealing party's failure to appear for the hearing and will be granted or denied at the discretion of the director of unemployment insurance appeals, or the director's designee. If the reinstatement is granted, the hearing shall be rescheduled. If the request is denied, the appealing party may appeal the denial to the review board. No appeal shall be reinstated more than once after a dismissal.(Department of Workforce Development;646 IAC 5-10-6 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-7 Withdrawal of appealIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 7. (a) A party appealing an initial determination of a deputy, or a party appealing a decision of an administrative law judge, may withdraw the appeal by written request. For an appeal pending before an administrative law judge, the request shall be filed with the presiding administrative law judge. For an appeal pending before the review board, the request shall be filed with the chairperson of the review board. If the request is approved, the underlying determination, or decision, shall become final.
(b) After an appeal has been withdrawn, the appealing party may file a request for reinstatement of the appeal within seven (7) days after the mailing date of the notice of withdrawal. For an appeal before an administrative law judge, the request shall be filed with the director of unemployment insurance appeals, or the director's designee. For an appeal pending before the review board, the request shall be filed with the chairperson of the review board. The request for reinstatement must show good cause for the reinstatement, and will be granted or denied at the discretion of the director of unemployment insurance appeals, or the director's designee, or the chairperson of the review board, depending upon the level of the appeal. No appeal shall be reinstated more than once after a withdrawal.(Department of Workforce Development;646 IAC 5-10-7 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-8 Decision of administrative law judgeIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 8. The decision of an administrative law judge shall contain conclusions of law that are supported by specific findings of fact. The decision shall be:(Department of Workforce Development;(1) in writing;(2) electronically signed by the administrative law judge; and(3) mailed to:(A) the named parties; and(B) their designated representatives or attorneys.646 IAC 5-10-8 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-9 Request for appeal to the review boardIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 9. Within fifteen (15) days after the mailing date of an administrative law judge decision, the adversely affected party may appeal the decision to the review board. The appeal shall be filed pursuant to the instructions set forth on the face of the administrative law judge decision. The review board may, in its discretion:(Department of Workforce Development;(1) hold a hearing on the matter appealed; or(2) review the record from the administrative law judge hearing and issue their decision based upon that review.646 IAC 5-10-9 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-10 Conduct of members of the review boardIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 10. (a) Review board members are expected to observe standards of conduct consistent with their position. These standards include, but are not limited to, the following:(1) Upholding the integrity of the agency.(2) Avoiding impropriety or the appearance of impropriety in all activities.(3) Performing the duties of the office diligently and impartially.
(b) The review board shall convene upon the call of the chairperson, for consultation, and for the disposition of matters pending before the review board. Two (2) members of the review board shall constitute a quorum for the:(1) transaction of any business; and(2) performance of any act required or authorized to be transacted or performed by the review board.
(c) The chairperson, when incapacitated and with the consent of the appointing authority, may designate an acting chairperson in the chairperson's absence.(Department of Workforce Development;646 IAC 5-10-10 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-11 Conduct of hearings before the review boardIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 11. (a) Unless otherwise directed by the review board, all hearings before the review board shall be conducted by telephone in the office of the review board in Indianapolis, Indiana.
(b) Each hearing before the review board shall be confined to the evidence submitted before the administrative law judge unless it is an original hearing. Provided, however, the review board may hear or procure additional evidence upon its own motion, or upon written application of either party, and for good cause shown, together with a showing of good reason why the additional evidence was not procured and introduced at the hearing before the administrative law judge.
(c) An application for leave to introduce additional evidence made by either party shall set forth the:(1) names of the witnesses whose testimony will be offered; and(2) facts to which they are expected to testify.If the new evidence is documentary, then a copy of the document proposed to be introduced shall accompany the application. The application, if made by the appellant, must be presented at the time the request for hearing is filed.
(d) No additional evidence shall be admitted except after notice is issued by the review board to all parties to the appeal giving each party an opportunity to rebut the additional evidence. The notice shall:(1) designate the time and place at which additional evidence will be received;(2) set forth the names of the witnesses whose testimony will be heard, together with a summary of the facts about which they are expected to testify; and(3) include a copy of any document offered as additional evidence.It is further provided, however, that if all parties to an appeal are present at a hearing at which the review board upon its own motion determines to take additional evidence and the parties voluntarily waive their right of notice of the taking of additional evidence, the review board in its own discretion may proceed in the taking of additional evidence.
(e) The review board may remand any proceeding to an administrative law judge for the hearing of additional evidence under the same conditions and after like notice as is provided for the hearing of additional evidence by the review board.
(f) In the hearing of an appeal, the review board may limit the parties to oral argument or the filing of written argument, or both. After notice to all parties, any party to any proceeding in which additional evidence is taken may present material evidence relative to the question upon which the review board has authorized or directed the taking of additional evidence, and evidence in rebuttal also may be introduced.
(g) The review board may order that any claim before an administrative law judge be removed to the review board for consideration. A claim so removed shall be presented, heard, and decided by the review board in the manner prescribed for the hearing of claims before an administrative law judge.(Department of Workforce Development;646 IAC 5-10-11 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-12 Decisions of the review boardIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 12. (a) The review board shall, as promptly as possible, issue a decision with conclusions of law supported by specific findings of fact. The decision shall be:(1) in writing; and(2) electronically signed by the members of the review board who heard the appeal.
(b) If a decision of the review board is not unanimous, the decision of the majority shall control, but the dissenting member may file an opinion.
(c) Copies of the decision, together with any dissenting opinion, shall be mailed to the parties, and to the parties' designated representatives or attorneys.
(d) A decision of the review board that reverses, in whole or in part, the decision of the administrative law judge shall not incorporate by reference or restatement, in whole, the findings of the administrative law judge, but rather shall contain its own findings and conclusions.(Department of Workforce Development;646 IAC 5-10-12 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-13 Witnesses; subpoenas; limitationIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-17-8 ;IC 22-4.1
Sec. 13. (a) Whenever the attendance of a witness, or the production of documents or other evidence, is desired by any party to a hearing, the party must request the issuance of a subpoena. The request must be made by telephone directed to the clerk of the administrative law judge. The clerk will:(1) take the information from the requesting party; and(2) submit the request to the administrative law judge for consideration.The request must be made in time for the subpoena to be issued, and served, prior to the time and date of the hearing. The request will be granted or denied at the discretion of the administrative law judge.
(b) A subpoena shall be issued only upon a showing of necessity by the party requesting the subpoena. The request for a subpoena must contain:(1) the name and address of the individual being subpoenaed; and(2) a description of the document, record, or object to be produced.
(c) A subpoena, or a denial of a request for a subpoena, shall be served on all interested parties, by mail, by the clerk of the administrative law judge. Subpoenas shall be enforced in the manner set forth in(Department of Workforce Development;IC 22-4-17-8 .646 IAC 5-10-13 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-14 DepositionsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 14. In all hearings, proof may be made by oral testimony, by documentary exhibits, or by depositions when the convenience of the witnesses or the parties so requires. Depositions shall be taken in the manner set forth in the Indiana Rules of Trial Procedure.(Department of Workforce Development;646 IAC 5-10-14 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-15 TranslationsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 15. (a) No paper or document written in any foreign language shall be introduced into evidence unless it is accompanied by an accurate English translation, with satisfactory proof, as determined by the administrative law judge, that the translation is a correct translation of the original.
(b) Testimony in a language other than English, or by the hearing impaired, shall be translated by an interpreter provided by the department, at the department's expense. The interpreter is subject to the interpreter oath or affirmation, which shall be administered by the administrative law judge.(Department of Workforce Development;646 IAC 5-10-15 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-16 Recording hearings; transcriptsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 16. All evidence introduced into the record at any hearing before an administrative law judge or the review board shall be preserved. All oral evidence shall be electronically recorded. Hearing recordings shall not be transcribed unless a review board decision is appealed to the Indiana court of appeals, and the transcript becomes a necessary part of the administrative record on appeal.(Department of Workforce Development;646 IAC 5-10-16 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-17 Records of decisionsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 17. (a) Copies of all determinations of adjudicators, and of all decisions of administrative law judges and of the review board, shall be electronically stored by the department, consistent with state of Indiana record retention schedules. These decisions shall not be open to public inspection in a manner as to reveal the names or addresses of the interested parties or their witnesses.
(b) Physical case files and audio recordings of hearings shall not be maintained permanently and will be destroyed in accordance with state of Indiana records retention schedules.(Department of Workforce Development;646 IAC 5-10-17 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-18 Representation before an administrative law judge or the review boardIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 18. (a) Any employer or employing unit interested in any benefit claim pending before an administrative law judge or the review board may appear:(1) in person, by an officer or other employee of the company, designated by the company;(2) by an attorney at law, as defined in subsection (e);(3) by a recognized public accountant; or(4) by a representative of an unemployment compensation service firm.
(b) A claimant for unemployment benefits may appear:(1) in person;(2) by an attorney at law, as defined in subsection (e);(3) by a recognized public accountant; or(4) by an authorized agent of a bona fide labor organization to which the claimant belonged at the time that the appealed issue occurred.
(c) In addition, any interested party may be represented by an individual or member of a class of individuals authorized by rule of the Indiana supreme court to represent parties in judicial or quasi-judicial proceedings.
(d) An administrative law judge, or the review board, in their discretion, may refuse to allow any person to represent a party in any proceeding before the administrative law judge, or the review board, if the administrative law judge, or the review board, finds that this person is or has been guilty of unethical conduct, or has intentionally or repeatedly failed to observe the provisions ofIC 22-4 , the rules of the department, or other rules or regulations relating to unemployment insurance hearings.
(e) As used in this section, "attorney" means any person duly admitted to, and in good standing in, the practice of law in their state of residence. Any attorney, agent, or accountant may be required to produce proof of his or her authority and qualifications before appearing in any hearing before an administrative law judge or the review board.
(f) Fees charged to claimants for representation before an administrative law judge or the review board shall be in a sum subject to the approval of the review board. Except in unusual cases, this fee shall be for a sum not in excess of fifteen percent (15%) of the unpaid balance of the claimant's maximum benefit amount.(Department of Workforce Development;646 IAC 5-10-18 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-19 Service of notice; computation of timeIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-17-14 ;IC 22-4.1
Sec. 19. (a) Notice of all hearings or proceedings before an administrative law judge, or the review board, unless otherwise directed by statute, shall be given by United States mail, with proof of mailing being prima facie evidence of service, or by facsimile or electronic means agreed upon by the party receiving the notice, addressed to the parties' addresses of record on file with the department.
(b) As used in this section, "notice" includes mailings of notices, determinations, decisions, orders, motions, or the filing of any document with the appellate division or the review board.
(c) If a notice is served through the United States mail, three (3) days must be added to a period that commences upon service of that notice.
(d) A document mailed to a party is presumed to be received if the document was mailed to the complete, correct address of record unless:(1) there is tangible evidence of nondelivery, such as the document being returned to the agency by the United States Postal Service; or(2) credible and persuasive evidence is submitted to the agency to establish nondelivery, delayed delivery, or misdelivery of the document.
(e) The filing of a document with the appellate division, or the review board, is complete on the earliest of the following dates that apply to the filing:(1) The date on which the document is delivered in person to:(A) the appellate division;(B) the review board; or(C) a WorkOne office;by an interested party or by their authorized representative.(2) The date of the postmark on the envelope containing the document, if the document is mailed to:(A) the appellate division;(B) the review board; or(C) a WorkOne office;through the United States Postal Service.(3) The date on which the document is deposited with a private carrier, as shown by a receipt issued by the carrier, if the document is sent to:(A) the appellate division;(B) the review board; or(C) a WorkOne office;by a private carrier.(4) The date of receipt by the department, if the document is submitted by facsimile or in another electronic form approved by the department.
(f) When computing any period of time prescribed or allowed by this article, by order of an administrative law judge or the review board, or by any applicable statute, the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included, unless it is:(1) a Saturday;(2) a Sunday;(3) a legal holiday as defined by state statute; or(4) a day that the department is closed during regular business hours.If the last day of the response period falls on a day described in subdivisions (1) through (4), then the period runs until the end of the next regular business day of the department.
(g) Responses filed outside of a time period computed pursuant to this section will be considered to be untimely.(Department of Workforce Development;646 IAC 5-10-19 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-20 Pleadings; formsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 20. Unless otherwise provided in this rule, all forms, pleadings, and papers in connection with appeals shall be filed with the presiding administrative law judge or the chairperson of the review board depending upon the level of appeal. All legal motions filed by attorneys or representatives shall be served on all interested parties, with an included certificate of service.(Department of Workforce Development;646 IAC 5-10-20 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-21 Change of administrative law judgeIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-17-5 ;IC 22-4.1
Sec. 21. Upon written application to the director of unemployment insurance appeals, a party to a hearing before an administrative law judge may request a change of the assigned judge. The requesting party must establish good cause for the change, and the decision to change is at the discretion of the director of unemployment insurance appeals. A party is entitled to only one (1) change of judge.(Department of Workforce Development;646 IAC 5-10-21 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-22 Transfer of hearing to unemployment insurance boardIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-17-5 ;IC 22-4.1
Sec. 22. A claim pending before an administrative law judge, or before the review board, can be transferred to the unemployment insurance board under(Department of Workforce Development;IC 22-4-17-5 . When a transfer takes place, the hearing shall be held before, and decided by, the full unemployment insurance board. Rules governing hearings before the unemployment insurance board shall be the same as those applicable to hearings before the review board.646 IAC 5-10-22 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-23 Deceased claimantIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 23. (a) UnderIC 22-4-12-1 , unemployment insurance benefits due and payable to a deceased applicant shall be paid to the executor, administrator, or next-of-kin of the deceased if, prior to their death, the decedent had executed a voucher for the benefits claimed.
(b) If there is an executor or administrator, payments must be made to the executor or administrator. If it is shown to the satisfaction of the department that there is no executor, and no administrator has been appointed, and in all probability no administrator will be appointed, payment may be made to the next-of-kin, with due regard being given to the following order of preference:(1) The surviving spouse.(2) Children.(3) Parents.(4) Brothers and sisters.(5) Other relatives.However, the department is not bound to follow this order of preference.
(c) Whenever there is more than one (1) legal heir in any of the classes established in subsection (b), payment may be made to any one (1) of that group as agent for the others upon submission of proper evidence of authority and identification.
(d) Application for payment of such benefits must be made in writing and on the prescribed form within six (6) months after the death of the decedent provided that the department, upon good cause shown, may extend the time for filing.
(e) UnderIC 22-4-17-2 , in cases where the claimant's benefit eligibility, or disqualification, is disputed, the department shall promptly notify the claimant and the employer, or employers, directly involved with the issue or issues raised, and the determination will set forth the appeal rights of the party receiving the adverse determination. In the event of the death of the claimant between the:(1) filing of a valid claim for benefits; and(2) issuance of an eligibility determination by the department;all notices filed or issued under this rule shall be served upon the authorized representative of the deceased claimant, as determined under subsection (b).
(f) In the event a hearing is scheduled in an appeal involving a deceased claimant, the claimant's authorized representative of the estate shall be allowed to participate in the hearing in place of the claimant, and the appeal shall proceed as set forth under this rule.(Department of Workforce Development;646 IAC 5-10-23 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-24 Telephone hearingsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 24. (a) Except as otherwise provided in this section, all hearings scheduled before an administrative law judge, or the review board, shall be set as telephone hearings, in which all interested parties shall participate by telephone.
(b) Once an administrative law judge hearing is scheduled by telephone, an interested party has the right to:(1) object to telephone participation; and(2) be allowed to participate in the hearing in person.Such an objection must be filed with the administrative law judge assigned to the case not later than three (3) days prior to the scheduled hearing date. A revised notice of hearing will then be sent to the parties, changing the type of hearing for the requesting party to an in-person hearing at the hearing site closest to where the employment services were performed. Whether the nonrequesting party will also be required to participate in person shall be at the discretion of the administrative law judge assigned to the case.
(c) An administrative law judge, or the review board, may, at their discretion, schedule and conduct an in-person hearing under this rule.
(d) When a hearing before an administrative law judge, or the review board, is scheduled by telephone, either with one (1) or both parties participating by telephone, the parties shall:(1) exchange any exhibits to be introduced into the record at the hearing; and(2) mail a copy of those exhibits to the administrative law judge, or to the review board, no later than four (4) days prior to the scheduled hearing date.A copy of the certified mail mailing label, or a copy of the label from a private carrier, shall serve as proof of mailing.
(e) If, at the time of the scheduled hearing, all participants have not received copies of any exhibits, if the presenting party can establish proof of mailing, the administrative law judge, or the review board, has the discretion of continuing the hearing in order to allow all participants to obtain copies of all exhibits, or of attempting to have any missing exhibits read into the record, while affording the opposing party the opportunity to object to the admission of the exhibits. If the presenting party cannot establish proof of mailing, then the hearing will proceed as scheduled, without the consideration of the missing exhibits.
(f) A party to a telephonic hearing before an administrative law judge, or the review board, shall submit one (1) contact telephone number for the hearing. If a party has a representative, or has witnesses, that party shall arrange for their representative, or witnesses, to be at their location, or shall arrange for the conferencing of the additional individuals into the hearing. Absent prior approval for calling additional numbers per party, an administrative law judge, or the review board, will call only one (1) contact telephone number per party.(Department of Workforce Development;646 IAC 5-10-24 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-10-25 Proceedings before the liability administrative law judgeIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-32-4 ;IC 22-4.1
Sec. 25. (a) Any protest filed by an employer underIC 22-4-32-4 must contain the cause or grounds for the protest, and the particular fact or facts relied upon to support the protest. The protesting employer may file either on the form provided by the department for that purpose or on any other document that shows an intent to protest the department's determination. The employer:(1) must sign the protest; and(2) shall file the protest with the commissioner.
(b) After the protest is received by the commissioner, the commissioner, or the commissioner's designee, shall refer the protest to the liability administrative law judge, who will set the date, time, and place for the hearing. The hearing will be scheduled to be held no fewer than ten (10) days following the mailing date of the notice of hearing.
(c) By permission of the liability administrative law judge, the employer may amend its protest at any time prior to the beginning of the hearing. The hearing will be confined to the issues raised by the employer's protest.
(d) Unless the employer's protest is filed within the statutory time period, the department's liability determination shall be considered to be correct and final.
(e) The liability administrative law judge shall have no jurisdiction to determine the benefit rights of any individual to whom benefits have been paid as the result of a final determination.(Department of Workforce Development;646 IAC 5-10-25 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Rule 11. Administration of Interstate Benefits
Authority:646 IAC 5-11-1 Interstate benefit payment planIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 1. This rule governs the state of Indiana in its administrative cooperation with other states adopting a similar regulation for the payment of benefits to interstate claimants.(Department of Workforce Development;646 IAC 5-11-1 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-11-2 DefinitionsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 2. (a) The definitions in this section apply throughout this rule.
(b) "Agent state" means any state in which an individual files a claim for benefits from another state.
(c) "Benefits" means the compensation payable to an individual, with respect to his or her unemployment, under the unemployment insurance law of any state.
(d) "Interstate benefit payment plan" means the plan approved by the interstate conference of employment security agencies under which benefits shall be payable to unemployed individuals absent from the state in which benefit credits have been accumulated.
(e) "Interstate claimant" means an individual who claims benefits under the unemployment insurance law of one (1) or more liable states through the facilities of an agent state. The term shall not include any individual who customarily commutes from a residence in an agent state to work in a liable state unless the department finds that this exclusion would create undue hardship on such claimants in specified areas.
(f) "Liable state" means any state against which an individual files, through another state, a claim for benefits.
(g) "Week of unemployment" includes any week of unemployment as defined in the law of the liable state from which benefits with respect to such week are claimed.(Department of Workforce Development;646 IAC 5-11-2 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-11-3 Registration for workIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 3. (a) Each interstate claimant shall be registered for work through any public employment office in the agent state when and as required by the law, regulations, rules, and procedures of the agent state. The registration shall be accepted as meeting the registration requirements of the liable state.
(b) Each agent state shall duly report to the liable state in question whether each interstate claimant meets the registration requirements of the agent state.(Department of Workforce Development;646 IAC 5-11-3 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-11-4 Benefit rights of interstate claimantsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 4. (a) If a claimant files a claim against any state, and it is determined by the state that the claimant has available benefit credits in such state, then claims shall be filed only against the state as long as benefit credits are available in that state. Thereafter, the claimant may file claims against any other state in which there are available benefit credits.
(b) Under this rule, benefit credits shall be deemed to be unavailable whenever benefits:(Department of Workforce Development;(1) have been exhausted, terminated, or postponed for an indefinite period or for the entire period in which benefits would otherwise be payable; or(2) are affected by the application of a seasonal restriction.646 IAC 5-11-4 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-11-5 Claims for benefitsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 5. (a) Claims for benefits or waiting period shall be filed:(1) by interstate claimants on uniform interstate claim forms and in accordance with the uniform procedures developed pursuant to the interstate benefit payment plan; and(2) in accordance with the type of week in use in the agent state.Any adjustments required to fit the type of week used by the liable state shall be made by the liable state on the basis of consecutive claims filed.
(b) Claims shall be filed in accordance with agent state rules or regulations for intrastate claims in local employment offices, at an itinerant point, or by mail.
(c) With respect to claims for weeks of unemployment in which an individual was not working for the individual's regular employer, the liable state shall, under circumstances that it considers good cause, accept a continued claim filed up to one (1) week, or one (1) reporting period, late. If a claimant files more than one (1) reporting period late, an initial claim must be used to begin a claim series, and no continued claim for a past period shall be accepted.
(d) With respect to weeks of unemployment during which an individual is attached to the individual's regular employer, the liable state shall accept any claim that is filed within the time limit applicable to such claims under the law of the agent state.(Department of Workforce Development;646 IAC 5-11-5 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-11-6 Claims for benefitsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 6. (a) The agent state shall, in connection with each claim filed by an interstate claimant, ascertain and report to the liable state in question such facts relating to the claimant's availability for work and eligibility for benefits as are readily determinable in and by the agent state.
(b) The agent state's responsibility and authority in connection with the determination of interstate claims shall be limited to investigation and reporting of relevant facts. The agent state shall not refuse to take an interstate claim.(Department of Workforce Development;646 IAC 5-11-6 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-11-7 Appellate procedureIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 7. (a) Appeals shall be conducted in accordance with the interstate agreement.
(b) With respect to the time limits imposed by the law of a liable state upon the filing of an appeal in connection with a disputed benefit claim, an appeal made by an interstate claimant shall be deemed to have been made and communicated to the liable state on the date when the appeal is received by any qualified officer of the agent state.(Department of Workforce Development;646 IAC 5-11-7 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-11-8 Extension of interstate benefit payments to include claims taken in and for CanadaIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 8. This rule shall apply in all its provisions to claims taken in and for Canada.(Department of Workforce Development;646 IAC 5-11-8 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Rule 12. Reciprocal Agreements
Authority:646 IAC 5-12-1 Reciprocal coverage of multistate workersIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 1. This rule governs the department in its administrative cooperation with other states subscribing to the interstate reciprocal coverage arrangement, hereinafter referred to as the arrangement.(Department of Workforce Development;646 IAC 5-12-1 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-12-2 DefinitionsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 2. (a) The definitions in this section apply throughout this rule.
(b) "Agency" means any officer, board, commission, or other authority charged with the administration of the unemployment compensation law of a participating jurisdiction.
(c) "Customarily performed services by an individual in more than one (1) jurisdiction" means services performed in more than one (1) jurisdiction during a reasonable period, if the nature of the services gives reasonable assurance that they will continue to be performed in more than one (1) jurisdiction or if the services are required or expected to be performed in more than one (1) jurisdiction under the election.
(d) "Interested agency" means the agency of jurisdiction.
(e) "Interested jurisdiction" means any participating jurisdiction to which an election submitted under this rule is sent for its approval.
(f) "Jurisdiction" means any state of the United States, the District of Columbia, Canada, or, with respect to the federal government, the coverage of any federal unemployment compensation law.
(g) "Participating jurisdiction" means a jurisdiction whose:(Department of Workforce Development;(1) administrative agency has subscribed to the arrangement; and(2) adherence thereto has not terminated.646 IAC 5-12-2 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-12-3 Reciprocal coverage election approvalIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 3. The Indiana unemployment insurance board delegates to the commissioner of the department authority to approve or disapprove reciprocal coverage elections in accordance with this rule.(Department of Workforce Development;646 IAC 5-12-3 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-12-4 Location of services in questionIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 4. (a) In accordance with reciprocal agreements entered underIC 22-4-22-1 throughIC 22-4-22-4 , coverage and allocation to certain states of services and wages paid for such services, performed both in Indiana and one (1) or more other states, shall be deemed employment and wages in the state as provided in those agreements so long as they remain in force.
(b) If services are performed both in Indiana and in one (1) or more other states with which no reciprocal agreement exists relating to the allocation of services and wages, and the services are not localized in any state, then contributions will be required on wages for services performed in Indiana, if:(Department of Workforce Development;(1) those services constitute employment within the meaning ofIC 22-4-8-1 ; and(2) contributions are not required and paid in another state.646 IAC 5-12-4 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-12-5 Submission and approval of coverage elections under the interstate reciprocal coverage arrangementIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 5. (a) Any employing unit may file an election to cover under the law of a single participating jurisdiction all of the services performed for him or her by an individual who customarily works for him or her in more than one (1) participating jurisdiction. An election may be filed, with respect to an individual, with any participating jurisdiction in which:(1) any part of the individual's services are performed;(2) the individual has his or her residence; or(3) the employing unit maintains a place of business to which the individual's services bear a reasonable relation.
(b) The agency of the elected jurisdiction shall initially approve or disapprove the election. If the agency approves the election, it shall forward a copy to the agency of each other participating jurisdiction specified, under whose unemployment compensation law the individual or individuals in question might, in the absence of the elections, be covered. Each interested agency shall:(1) approve or disapprove the election, as promptly as practicable; and(2) notify the agency of the elected jurisdiction accordingly.
(c) In case its law so requires, any interested agency may, before taking action, require from the electing employing unit satisfactory evidence that the affected employees have been notified of, and have acquiesced in, the election.
(d) If the agency of the elected jurisdiction, or the agency of any interested jurisdiction, disapproves the election, the disapproving agency shall notify the elected jurisdiction and the electing employing unit of its action and of its reasons.
(e) An election shall take effect as to the elected jurisdiction only if approved by its agency and by one (1) or more interested agencies. An election thus approved shall take effect, as to any interested agency, only if it is approved by the agency.
(f) In case any election is approved only in part, or is disapproved by some of the agencies, the electing employing unit may withdraw its election within ten (10) days after being notified of this action.(Department of Workforce Development;646 IAC 5-12-5 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-12-6 Effective period of electionsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 6. (a) An election duly approved under this rule shall become effective at the beginning of the calendar quarter in which the election was submitted unless the election, as approved, specifies the beginning of a different calendar quarter. If the electing unit requests an earlier effective date than the beginning of the calendar quarter in which the election is submitted, the earlier date may be approved solely as to those interested jurisdictions in which the employer had no liability to pay contributions for the earlier period in question.
(b) The application of an election to any individual under this rule shall terminate if the agency of the elected jurisdiction finds that the nature of the services customarily performed by the individual for the electing unit has changed, so that they are no longer customarily performed in more than one (1) participating jurisdiction. Such termination shall be effective at the close of the calendar quarter in which notice of the finding is mailed to all parties affected.
(c) Except as provided in subsection (b), each election approved shall remain in effect through the close of the calendar year in which it is submitted until the close of the calendar quarter in which the electing unit gives written notice of its termination to all affected agencies.
(d) Whenever an election under this rule ceases to apply to any individual under subsection (b) or (c), the electing unit shall notify the affected individual accordingly.(Department of Workforce Development;646 IAC 5-12-6 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-12-7 Reports and notices by the electing unitIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 7. (a) The electing unit shall:(1) promptly notify each individual affected by its approved election; and(2) furnish the elected agency a copy of the notice.
(b) Whenever an individual covered by an election under this rule is separated from employment, the electing unit shall notify the individual as to the jurisdiction under whose unemployment compensation law the services have been covered. If, at the time of termination, the individual is not located in the elected jurisdiction, the electing unit shall notify the individual as to the procedure for filing interstate benefit claims.
(c) The electing unit shall immediately report to the elected jurisdiction any change that occurs in the conditions of employment pertinent to its election, such as cases where:(Department of Workforce Development;(1) an individual's services for the employer cease to be customarily performed in more than one (1) participating jurisdiction; or(2) a change in the work assigned to an individual requires him or her to perform services in a new participating jurisdiction.646 IAC 5-12-7 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Rule 13. Regulation of Deadly Weapons and Devices
Authority:646 IAC 5-13-1 Policy statementIC 22-4-18-1 ;IC 22-4.1-3-3 Affected:IC 22-4-8-1 ;IC 22-4.1
Sec. 1. (a) It is the policy of the state to protect the public peace, health, and safety and to preserve the lives and property of the people working or having business in department offices, and to assure the continuity of department operations. The department shall act to maintain security, enforce rules relating to security, and preserve the peace in and around department offices.
(b) Unless otherwise set forth in this rule or other applicable statute, this rule applies to all:(1) visitors;(2) invitees;(3) state employees;(4) contractors; and(5) agents.
(c) This rule is in conjunction with(Department of Workforce Development;25 IAC 8 , a rule of the Indiana department of administration and240 IAC 9 , a rule of the state police department.646 IAC 5-13-1 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-13-2 DefinitionsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 2. The following definitions apply throughout this rule:(Department of Workforce Development;(1) Except as provided in clause (D), "deadly weapon" means any of the following:(A) A loaded or unloaded firearm (as defined inIC 35-47-1-5 ).(B) A destructive device, weapon, device, taser (as defined inIC 35-47-8-3 ), electronic stun weapon (as defined inIC 35-47-8-1 ), or stun gun (as defined inIC 35-47-8-2 ), equipment, including knives, chemical substance, or other material, that, in the manner it is used, or could ordinarily be used, or is intended to be used, is readily capable of causing serious bodily injury.(C) A biological disease, virus, or organism that is capable of causing serious bodily injury.(D) The term does not include:(i) a taser (as defined inIC 35-47-8-3 );(ii) an electronic stun weapon (as defined inIC 35-47-8-1 );(iii) a chemical designed to temporarily incapacitate a person; or(iv) another device designed to temporarily incapacitate a person;if the device described in items (i) through (iv) is used by a law enforcement officer who has been trained in the use of the device and who uses the device in accordance with the law enforcement officer's training and while lawfully engaged in the execution of official duties.(2) "Destructive device" has the meaning set forth inIC 35-47.5-2-4 .(3) "Person" means the following:(A) Visitors.(B) Invitees.(C) State employees.(D) Contractors.(E) Agents.(4) "Possession" means on or about a person's body or clothing, or in any:(A) purse;(B) backpack;(C) cooler;(D) sack;(E) carrier; or(F) other container;carried by the person or under that person's direct and immediate control.(5) "Terrorism" means the unlawful use of force or violence or the unlawful threat of force or violence to intimidate or coerce a government or all or part of the civilian population (as defined inIC 35-41-1-26.5 ).(6) "Weapon of mass destruction" has the meaning set forth inIC 35-41-1-29.4 .646 IAC 5-13-2 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-13-3 Weapons and devices prohibitedIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 3. No person in possession of a deadly weapon, destructive device, weapon of mass destruction, or any other device commonly used in furtherance of terrorism, or that is readily capable of causing serious bodily injury (as defined by(Department of Workforce Development;IC 35-41-1-25 ) as determined by an authorized law enforcement officer shall be permitted into or permitted to remain in a department office.646 IAC 5-13-3 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
Authority:646 IAC 5-13-4 Authorized personsIC 22-4-18-1 ;IC 22-4.1-3-3
Sec. 4. This rule does not apply to the following persons, otherwise authorized by law to carry firearms, who enter a department office in an official capacity and not as private citizens:(Department of Workforce Development;(1) A federal, state, or local law enforcement officer or a person who has been employed or authorized by the state to provide security protection and services.(2) Members of the Indiana general assembly who hold an unlimited license to carry a handgun (seeIC 35-47-2-4 ).(3) Members of the Indiana judiciary (seeIC 35-47-2-2 (4)).646 IAC 5-13-4 ; filed Apr 26, 2011, 11:23 a.m.:20110525-IR-646100464FRA )
SECTION 2. THE FOLLOWING ARE REPEALED:646 IAC 3-1-1 ;646 IAC 3-1-2 ;646 IAC 3-1-6 ;646 IAC 3-1-9 ;646 IAC 3-2-1 ;646 IAC 3-2-2 ;646 IAC 3-2-3 ;646 IAC 3-2-4 ;646 IAC 3-2-5 ;646 IAC 3-2-6 ;646 IAC 3-2-7 ;646 IAC 3-3-1 ;646 IAC 3-3-2 ;646 IAC 3-4-4 ;646 IAC 3-4-6 ;646 IAC 3-5-2 ;646 IAC 3-5-4 ;646 IAC 3-6-2 ;646 IAC 3-6-3 ;646 IAC 3-6-5 ;646 IAC 3-7-1 ;646 IAC 3-7-2 ;646 IAC 3-7-4 ;646 IAC 3-7-5 ;646 IAC 3-7-6 ;646 IAC 3-7-7 ;646 IAC 3-7-8 ;646 IAC 3-7-9 ;646 IAC 3-8-1 ;646 IAC 3-8-2 ;646 IAC 3-8-3 ;646 IAC 3-8-5 ;646 IAC 3-8-6 ;646 IAC 3-8-7 ;646 IAC 3-8-9 ;646 IAC 3-8-10 ;646 IAC 3-8-11 ;646 IAC 3-8-12 ;646 IAC 3-8-13 ;646 IAC 3-8-14 ;646 IAC 3-8-15 ;646 IAC 3-9-2 ;646 IAC 3-9-5 ;646 IAC 3-9-7 ;646 IAC 3-10-12 ;646 IAC 3-10-14 ;646 IAC 3-10-16 ;646 IAC 3-10-23 ;646 IAC 3-11 ;646 IAC 3-12-2 ;646 IAC 3-12-8 ;646 IAC 3-12-12 ;646 IAC 3-12-19 ;646 IAC 3-13-2 ;646 IAC 3-13-3 ;646 IAC 3-13-4 ;646 IAC 3-13-5 ;646 IAC 3-13-6 ;646 IAC 3-15-5 .
LSA Document #10-464(F)Notice of Intent:20100714-IR-646100464NIA Proposed Rule:20110119-IR-646100464PRA Hearing Held: February 24, 2011Approved by Attorney General: April 20, 2011Approved by Governor: April 26, 2011Filed with Publisher: April 26, 2011, 11:23 a.m.Documents Incorporated by Reference: None Received by PublisherSmall Business Regulatory Coordinator: Robert K. Robisch, Attorney at Law, Director of Unemployment Insurance Policy, Indiana Department of Workforce Development, 10 North Senate Avenue, Indianapolis, IN 46204, (317) 233-8274, rrobisch@dwd.in.govPosted: 05/25/2011 by Legislative Services Agency
DIN: 20110525-IR-646100464FRAComposed: Nov 01,2016 1:09:35AM EDTA PDF version of this document.
