Current through Register Vol. 49, No. 18, September 16, 2024
PURPOSE: This rule establishes the standards and
procedures for the provision of state-funded unemployment compensation to war
on terror veterans. This rule implements section
288.042,
RSMo.
(1) Program Title. The
provisions of section
288.042,
RSMo providing state-funded unemployment compensation benefits to war on terror
veterans shall hereinafter be referred to as the "Missouri Veterans'
Unemployment Compensation Program."
(2) Funding. Subject to appropriation and the
availability of funds, all expenditures for the Missouri Veterans' Unemployment
Compensation Program, including expenditures for administrative expenses,
veterans' unemployment compensation benefits, and refunds of erroneous fines,
shall be paid from state funds deposited in the "War on Terror Unemployment
Compensation Fund."
(3)
Definitions. As used in this rule, except as otherwise required for the
context, the following terms shall have the meanings ascribed:
(A) "Applicant" means an individual who files
with the division an application for determination of entitlement to veterans'
unemployment compensation;
(B)
"Deputy" means a representative of the division designated to make
investigations, administrative determinations, and assessments concerning
applications for veterans' unemployment compensation and employer
administrative penalties;
(C)
"Division" means the Missouri Division of Employment Security;
(D) "Director" means the director of the
Missouri Division of Employment Security;
(E) "Employed" means engaged to perform
services for wages under any contract of hire whether written, oral, express,
or implied. In determining whether an employer-employee relationship existed,
the division shall apply the common law right of control test. In applying such
test, the division shall consider Missouri and federal case law, United States
Treasury regulations, and Internal Revenue Service revenue rulings;
(F) "Employer" means any individual,
partnership, corporation, or other legal entity which has or had in its employ
one or more individuals performing services for wages or under any contract of
hire whether written, oral, express, or implied;
(G) "Wages" means all remuneration paid for
personal services including commissions, bonuses, gratuities, severance pay,
vacation pay, holiday pay, and the cash value of all remuneration paid in any
medium other than cash; and
(H)
"War on terror veteran" is an individual who meets all of the following
criteria:
1. The individual is a Missouri
resident who serves or has served in the United States military;
2. The individual is or was a member of the
National Guard or a member of a United States armed forces reserves unit who
was officially domiciled in the state of Missouri immediately prior to
deployment;
3. The individual was
deployed as part of his or her military unit at any time after September 11 ,
2001, and such deployment caused the individual to be unable to continue
working for his or her non-military employer;
4. The individual was employed either
part-time or full-time before deployment; and
5. A Missouri court or United States district
court located in Missouri has found that the individual was discharged from or
laid off from his or her non-military employment during deployment or within
thirty (30) days after the completion of his or her deployment. Such court
judgment must be final. For purposes of this rule, the individual shall be
considered to have been discharged from his or her non-military employment if
he or she is not offered the same wages, benefits, and similar work schedule
upon his or her return after deployment.
(4) Benefit Entitlement. Subject to
appropriation and availability of funds in the War on Terror Unemployment
Compensation Fund, any war on terror veteran shall be entitled to receive
veterans' unemployment compensation benefits pursuant to section
288.042,
RSMo and this rule. A war on terror veteran shall be entitled to a weekly
benefit amount of eight percent (8%) of the wages paid to the war on terror
veteran during the calendar quarter in which the war on terror veteran earned
the highest amount within the five (5) completed calendar quarters in which the
war on terror veteran received wages immediately before deployment. However,
the maximum weekly benefit amount shall not exceed one thousand one hundred
fifty-three dollars and sixty-four cents ($1,153.64). A war on terror veteran
shall be entitled to receive a weekly benefit amount for twenty-six (26)
weeks.
(5) Payment of Benefits. At
the discretion of the division, all veterans' unemployment compensation
benefits payable to a war on terror veteran shall be paid either by means of
electronic funds transferred directly into an account at a financial
institution designated by the war on terror veteran or by issuance of a debit
card to the war on terror veteran. As directed by a deputy, a war on terror
veteran shall complete a direct deposit application form authorizing the
division to directly deposit veterans' unemployment compensation benefit
payments into a designated checking or savings account. A war on terror veteran
may change the designated checking or savings account by completing and
transmitting to the division a new direct deposit application form. If a deputy
directs a war on terror veteran to complete a direct deposit application form,
the division shall not pay veterans' unemployment compensation benefits to the
war on terror veteran until such time as he or she has completed and returned
to the division the completed direct deposit application form.
(6) Application to the Program. Individuals
desiring to claim veterans' unemployment compensation benefits shall file with
the division, on an approved form included herein, an Application for Missouri
Veterans' Unemployment Benefits for determination of entitlement to veterans'
unemployment compensation benefits. A deputy shall examine each such
application to determine if the applicant is entitled to veterans' unemployment
compensation benefits. If the deputy determines that the applicant is entitled
to receive veterans' unemployment compensation benefits, the deputy shall also
determine the applicant's weekly benefit amount. The applicant shall bear the
burden of proving his or her entitlement to veterans' unemployment compensation
benefits. The division shall mail a copy of the deputy's determination to the
applicant at the applicant's last known address. If the applicant is aggrieved
by the deputy's determination, the applicant may appeal the determination by
filing an appeal with the division. The appeal must be filed in accordance with
the provisions of section (10) of this rule.
(7) Recovery of Overpaid Benefits. Any
individual who, by reason of error, omission, or misrepresentation of a
material fact, has received veterans' unemployment compensation to which he or
she is not entitled shall, in the discretion of the division, either be liable
to have such sums deducted from any future veterans' unemployment compensation
benefits payable pursuant to section
288.042,
RSMo and this rule or shall be liable to repay to the division for the War on
Terror Unemployment Compensation Fund a sum equal to such veterans'
unemployment compensation so received by such individual. In addition, to other
remedies provided by law and this rule, the division shall pursue recovery of
overpaid veterans' unemployment compensation benefits through setoffs against
state income tax refunds. The division shall pursue recovery of overpaid
veterans' unemployment compensation benefits through setoffs against federal
income tax refunds as permitted by federal law.
(A) A deputy shall issue an assessment to any
individual who has received veterans' unemployment compensation benefits to
which he or she is not entitled. Such assessment shall be made and served in
the manner provided in section
288.160,
RSMo. Within thirty (30) days of the date of service or mailing of the
assessment, the individual may file a petition for reassessment with the
division. The petition for reassessment must be filed in accordance with the
provisions of section (10) of this rule.
(B) If the overpaid veterans' unemployment
compensation benefits are not repaid and the assessment of such overpaid
benefits has become final, the division may file for record in the office of
the clerk of the circuit court in the county in which the individual resides,
or any other county in which the individual has property, or all of them, a
certificate specifying the amount of overpaid veterans' unemployment
compensation benefits in the manner provided in section
288.170,
RSMo. From the time of the filing of such certificate, the amount of overpaid
veterans' unemployment compensation benefits specified therein shall have the
force and effect of a judgment of the circuit court until the same is satisfied
by the division through its duly authorized agents. Execution shall be issuable
at the request of the division, its agent or attorney as is provided in the
case of other judgments. No exemption shall be allowed from the levy of an
execution issued for such overpaid veterans' unemployment compensation benefits
and no indemnifying bond shall be required by the sheriff before making levy.
If the individual defaults in the payment of such overpaid veterans'
unemployment compensation benefits, the division may file a civil action or
take such other action as provided by law to collect the overpaid
benefits.
(8) Employer
Penalties. Any employer who is found in any Missouri court or United States
district court located in Missouri to have terminated, demoted, or taken an
adverse employment action against a war on terror veteran due to his or her
absence while deployed shall be subject to an administrative penalty in the
amount of thirty-five thousand dollars ($35,000). Such court judgment must be
final. In addition, to other remedies provided by law and this rule, the
division shall pursue collection of the administrative penalty through setoffs
against state income tax refunds. The division shall also pursue collection of
the administrative penalty through setoffs against federal income tax refunds
as permitted by federal law.
(A) A deputy
shall issue an assessment to any such employer for the administrative penalty
in the amount of thirty-five thousand dollars ($35,000). Such assessment shall
be made and served in the manner provided in section
288.160,
RSMo. Within thirty (30) days of the date of service or mailing of the
assessment, the employer may file a petition for reassessment with the
division. The petition for reassessment must be filed in accordance with the
provisions of section (10) of this rule.
(B) If the administrative penalty is not paid
and the assessment of such penalty has become final, the division may file for
record in the office of the clerk of the circuit court in the county in which
the employer resides, or has his or her place of business, or any other county
in which the employer has property, or all of them, a certificate specifying
the amount of the administrative penalty in the manner provided in section
288.170,
RSMo. From the time of the filing of such certificate, the amount of the
administrative penalty specified therein shall have the force and effect of a
judgment of the circuit court until the same is satisfied by the division
through its duly authorized agents. Execution shall be issuable at the request
of the division, its agent or attorney as is provided in the case of other
judgments. No exemption shall be allowed from the levy of an execution issued
for such administrative penalty and no indemnifying bond shall be required by
the sheriff before making levy. If the employer defaults in the payment of such
administrative penalty, the division may file a civil action or take such other
action as provided by law to collect the penalty.
(9) Refund of Erroneous Penalties. If not
later than three (3) years after the date on which an employer has paid an
administrative penalty assessed by the division, the employer may request a
refund of such penalty. While the request for refund must be in writing, no
specific form shall be required. The request for refund must be signed by an
officer or authorized representative of the employer. If a deputy determines
that the administrative penalty was in fact erroneously assessed, the division
shall refund the amount of such penalty without interest. The employer shall
bear the burden of proving that the administrative penalty was erroneously
assessed. If the deputy determines that the administrative penalty was not
erroneously assessed, the request for refund shall be denied. If the deputy
denies the request for refund, the employer may file an appeal with the
division. The appeal must be filed in accordance with the provisions of
section
(10) Appeals.
(A) Any individual, partnership, corporation,
or other legal entity authorized by law which is aggrieved by a determination
issued by a deputy may file an appeal with the division. The appeal must be
filed within thirty (30) days of the date the determination was mailed. While
the appeal must be in writing, no specific form shall be required. An appeal
filed by an individual must be signed by the individual, the individual's
authorized agent, or the individual's attorney licensed to practice law in the
state of Missouri. An appeal filed by a partnership, corporation, or other
legal entity authorized by law must be signed by an officer of the entity,
full-time managerial employee of the entity, or an attorney licensed to
practice law in the state of Missouri. The division shall be a party to any
appeal filed pursuant to this rule. If a timely appeal is filed, the parties
shall be granted a hearing before an impartial hearing officer designated by
the director. The hearing shall be held in accordance with the provisions of
Chapter 536, RSMo. Any party aggrieved by the decision of the hearing officer
may seek judicial review in accordance with section
536.110,
RSMo.
(B) Any individual,
partnership, corporation, or other legal entity authorized by law which is
aggrieved by an assessment issued by a deputy may file a petition for
reassessment with the division. The petition for reassessment must be filed
within thirty (30) days of the date the assessment was served or mailed. While
the petition for reassessment must be in writing, no specific form shall be
required. A petition for reassessment filed by an individual must be signed by
the individual, the individual's authorized agent, or the individual's attorney
licensed to practice law in the state of Missouri. A petition for reassessment
filed by a partnership, corporation, or other legal entity authorized by law
must be signed by an officer of the entity, full-time managerial employee of
the entity, or an attorney licensed to practice law in the state of Missouri.
The division shall be a party to any petition for reassessment filed pursuant
to this rule. If a timely petition for reassessment is filed, the parties shall
be granted a hearing before an impartial hearing officer designated by the
director. The hearing shall be held in accordance with the provisions of
Chapter 536, RSMo. Any party aggrieved by the decision of the hearing officer
may seek judicial review in accordance with section
536.110,
RSMo.
(11) Federal
Judgments. The division shall take judicial notice of judgments in suits
brought under the Uniformed Service Employment and Reemployment Rights Act (
38 U.S.C.
4301) and such judgments shall be conclusive
with regard to an applicant's entitlement to veterans' unemployment
compensation and an employer's liability for the administrative penalty set
forth in subsection 4 of section
288.042,
RSMo.
(12) Records and Information.
(A) In addition to the information required
on the application to determine entitlement to veterans' unemployment
compensation benefits, an applicant shall provide such other information the
deputy deems reasonably necessary to determine the applicant's entitlement to
veterans' unemployment compensation benefits and the applicant's weekly benefit
amount.
(B) Each employer shall
provide copies of business records and such other information as the deputy
deems reasonably necessary to determine an applicant's entitlement to veterans'
unemployment compensation benefits and an applicant's weekly benefit amount.
Each employer shall also provide copies of business records and such other
information, as the deputy deems reasonably necessary to determine the
propriety of an administrative penalty.
(C) In discharging the duties imposed by
section
288.042,
RSMo, the director and any authorized representative may administer oaths and
affirmations, certify to official acts, and issue subpoenas to compel the
attendance of witnesses and the production of business records and other
documents. If any person refuses to obey a subpoena issued by the director or
any authorized representative, the division may seek enforcement of the
subpoena in any court within this state having jurisdiction of the
person.
(13) Filing
Documents. Any application, appeal, petition for reassessment, or other
document required under this rule to be filed with the division shall be deemed
filed on the date received by the division. In instances where the last day for
the filing of any such paper falls on a Saturday, Sunday, or legal holiday, the
filing shall be deemed timely if accomplished on the next day which is neither
a Saturday, Sunday, nor a legal holiday.
(14) Facsimile Transmission. Any document
required under this rule to be filed with the division may be filed by
facsimile transmission. Documents received by facsimile transmission on a
regular division workday will be considered filed on the date of receipt. A
facsimile transmission received on a Saturday, Sunday or legal holiday will be
considered filed on the next regular division workday. The date and time of
receipt will be determined by the division's receiving fax machine.
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*Original authority: 288.042, RSMo 2006, amended 2007 and
288.220 RSMo 1951, amended 1955, 1961, 1963, 1967, 1971,
1995.
