(1) Repayment. An individual shall be
required to repay an overpayment of unemployment compensation unless a written
application for waiver is filed with the department and approved by the
Commissioner or the Commissioner's designee.
(2) Methods of collection. In the discretion
of the department, an overpayment may be collected in any manner provided by
law for the general collection of debts, the collection of debts owed a
governmental entity, or any other method of collection specifically authorized
in Chapter 8 of Title 34, the Employment Security Law.
(3) Overpayment waiver.
(a) Waiver not permitted.
1. Fraud overpayment. An application for
waiver shall not be accepted for any overpayment the department determined was
the result of fraud attributable to the individual.
2. Federal law. An application for waiver
shall not be approved when waiver would be prohibited by federal law or
regulation, regardless of an individual's fault.
(b) Timeliness of waiver request.
1. An application for waiver shall not be
approved if it is filed later than fifteen (15) calendar days following the
release date of the Notice of Overpayment, provided, however, that the time
limitation may be extended upon a showing of extenuating circumstances which
prevented the filing of a timely application for waiver by the individual and
such circumstances were beyond the individual's control.
2. Special rule for Covid-19 Pandemic
overpayments.
(i) For any Notice of
Overpayment that established an overpayment for one or more claim weeks ending
February 8, 2020, through June 26, 2021, the fifteen (15) day time limitation
to file an application for waiver of overpayment may, in the discretion of the
Commissioner or the Commissioner's designee, be waived.
(ii) An individual whose application for
waiver of overpayment was denied prior to April 15, 2022, for failure to file a
timely application for waiver of overpayment may request a redetermination;
provided, however, that only overpayment weeks ending February 8, 2020, through
June 26, 2021, shall be eligible for redetermination. A redetermination with
respect to eligible weeks shall be made in accordance with the provisions of
this rule.
(c)
Suspension of collections. Collection of an overpayment will be suspended upon
the filing of an application for waiver and while the application for waiver is
pending.
(d) Requirements for
approval of waiver.
1. An application for
waiver of overpayment of unemployment compensation shall be approved only if:
(i) The individual is determined to be
without fault in the cause of the overpayment; and
(ii) Repayment of the overpayment is
determined to be contrary to equity and good conscience.
2. An individual shall be determined to be at
fault in the cause of the overpayment if the individual brought about such
overpayment by the presentation of false or misleading statements or
representations, whether or not such action has been determined fraudulent,
when such individual could have or should have known the presentation of such
information was false or misleading.
3. Repayment of the overpayment shall be
determined contrary to equity and good conscience if:
(i) The individual provides satisfactory
evidence of circumstances showing repayment would genuinely work a financial
hardship on the individual, such that recovery of the overpayment would result
directly in the individual's loss of or inability to obtain the minimal
necessities of food, medicine, and shelter for a substantial period of time and
such circumstances may be expected to endure for the foreseeable future;
and
(ii) The individual provides
satisfactory evidence that he or she has no reasonable prospect of future
employment or ability to repay the overpayment in the future, due to age,
disability, or other good cause.
(e) Burden of proof. The burden of proof
shall be on the individual to show the requirements for waiver are met. The
individual must specify on the application for waiver why they were without
fault in the cause of the overpayment, why repayment would be contrary to
equity and good conscience, and include supporting documentation.
(f) Applications for waiver considered on own
individual merits. The department shall consider each individual's waiver
application separately on its own merits, with due consideration of the facts
and circumstances of each individual case; provided, however, that this
limitation shall not apply if the federal government authorizes and approves
the department to issue a blanket waiver to a group of similarly situated
individuals.
(g) Decision and
appeal rights. The Commissioner or the Commissioner's designee shall notify
each individual in writing whether the application for waiver of overpayment
has been approved or denied. The decision of the Commissioner or the
Commissioner's designee shall become final unless the individual appeals the
decision within 15 days after the notice was mailed or otherwise delivered to
the individual.
(h) Refunds. Upon
approval of an application for waiver, the department shall not refund any
amount collected on the applicable overpayment unless federal law or
regulations specifically require a refund to be issued, in which case only
those amounts required by federal law or regulations shall be
refunded.
(i) Effect of judicial
proceedings. A waiver of an unemployment insurance overpayment may be issued by
the department in whole or in part upon the finding of a court of law having
proper subject matter jurisdiction which rules that error existed in the
information utilized to establish such overpayment, whether or not such
overpayment was determined to be fraudulent in nature. Additionally, if a court
finds repayment of an overpayment should be waived by virtue of discharge in
bankruptcy under federal bankruptcy law, waiver will be granted.
(4) Federal conformity. This rule
shall apply and be given effect only to the extent it is consistent with
federal law and regulations, and would not create a federal conformity
issue.