44-710. Employer contributions, liability for and payment of; pooled fund; election to become reimbursing employer; payments in lieu of contributions; group accounts.
44-710
44-710. Employer contributions, liability for andpayment of; pooledfund; election to become reimbursing employer; payments in lieu ofcontributions; group accounts.(a) Payment. Contributions shall accrueand become payable by each contributing employer for each calendar yearin which the contributing employer is subject to the employment securitylaw with respect to wages paid for employment. Such contributions shallbecome due and be paid by each contributing employer to the secretary forthe employment security fund in accordance with such rules and regulationsas the secretary may adopt and shall not be deducted, in whole or in part,from the wages of individuals in such employer'semploy. In the payment of any contributions, a fractional part of $.01shall be disregarded unless it amounts to $.005 ormore, in which case it shall be increased to $.01. Should contributionsfor any calendar quarter be less than $5, no payment shall berequired.
(b) Rates and base of contributions. (1) Except as provided inparagraph (2) of this subsection, each contributing employer shall paycontributions on wages paid by the contributing employer during eachcalendar year with respect to employment as provided in K.S.A. 44-710a andamendments thereto.
(2) (A) If the congress of the United States either amends or repealsthe Wagner-Peyser act, the federal unemployment tax act, the federal socialsecurity act, or subtitle C of chapter 23 of the federal internal revenuecode of 1986, or any act or acts supplemental to or in lieu thereof, or anypart or parts of any such law, or if any such law, or any part or partsthereof, are held invalid with the effect that appropriations of funds bycongress and grants thereof to the state of Kansas for the payment of costs ofadministration of the employment security law are no longer available forsuch purposes, or (B) if employers in Kansas subject to the payment of taxunder the federal unemployment tax act are granted full credit against suchtax for contributions or taxes paid to the secretary of labor,then, and in either such case, beginning with the year in which theunavailability of federal appropriations and grants for such purpose occursor in which such change in liability for payment of such federal tax occursand for each year thereafter, the rate of contributions of eachcontributing employer shall be equal to the total of .5% and the rate ofcontributions as determined for such contributing employer under K.S.A.44-710a and amendments thereto. The amount of contributions which eachcontributing employer becomes liable to pay under this paragraph (2) overthe amount of contributions which such contributing employer would beotherwise liable to pay shall be credited to the employment securityadministration fund to be disbursed and paid out under the same conditionsand for the same purposes as other moneys are authorized to be paid fromthe employment security administration fund, except that, if the secretarydetermines that as of the first day of January of any year there is anexcess in the employment security administration fund over the amount requiredto be disbursed during such year, an amount equal to such excess as determinedby the secretary shall be transferred to the employment security fund.
(c) Charging of benefit payments.(1) The secretary shall maintain aseparate account for each contributing employer, and shall credit thecontributing employer's account with all the contributions paid on thecontributing employer's own behalf. Nothing in the employment security lawshall be construed to grant any employer or individuals in such employer'sservice prior claims or rights to the amounts paid by such employer intothe employment security fund either on such employer's own behalf or onbehalf of such individuals. Benefits paid shall be charged against theaccounts of each base period employer in the proportion thatthe base period wages paid to an eligible individual by each suchemployer bears to the total wages in the base period. Benefits shall becharged to contributing employers' accounts and rated governmentalemployers' accounts upon the basis of benefits paid during eachtwelve-month period ending on the computation date.
(2) (A) Benefits paid in benefit years established by valid newclaims shall not be charged to the account of a contributing employer or ratedgovernmental employer who is a base period employer if the examiner findsthat claimant was separated from the claimant's most recent employment withsuch employer under any of the following conditions: (i) Discharged formisconduct or gross misconduct connected with the individual's work; or(ii) leaving work voluntarily without good cause attributable to theclaimant's work or the employer.
(B) Where base period wage credits of a contributing employer or ratedgovernmental employer represent part-time employment and the claimantcontinues in that part-time employment with that employer during the periodfor which benefits are paid, then that employer's account shall not becharged with any part of the benefits paid if the employer provides thesecretary with information as required by rules and regulations. For thepurposes of this subsection (c)(2)(B), "part-time employment" means anyemployment when an individual works concurrently for two or moreemployers and also works less than full-time for at least one of thoseemployers because the individual's services are not required for thecustomary, scheduled full-time hours prevailing at the work place or theindividual does not customarily work the regularly scheduled full-timehours due to personal choice or circumstances.
(C) No contributing employer or rated governmental employer's account shallbe charged with any extended benefits paid in accordancewith theemployment security law, except for weeks of unemployment beginning afterDecember 31, 1978, all contributing governmental employers and governmentalrated employers shall be charged an amount equal to all extended benefits paid.
(D) No contributing employer, rated governmental employer or reimbursingemployer's account shall be charged for any additional benefits paid during theperiod July 1, 2003 through June 30, 2004.
(E) No contributing employer or rated governmentalemployer's account will be charged for benefits paid a claimant while pursuingan approved training course as defined in subsection (s) of K.S.A. 44-703 andamendments thereto.
(F) No contributing employer or rated governmentalemployer's account shall be charged with respect to the benefits paid to anyindividual whose base period wages include wages for services not covered bythe employment security law prior to January 1, 1978, to the extent that theemployment security fund is reimbursed for such benefits pursuant to section121 of public law 94-566 (90 Stat. 2673).
(G) With respect to weeks of unemployment beginning afterDecember 31, 1977, wages for insured work shall include wages paid forpreviously uncovered services. For the purposes of this subsection(c)(2)(G),the term "previously uncovered services" means services which were not coveredemployment, at any time during the one-year period ending December 31, 1975,except to the extent that assistance undertitle II of the federal emergency jobs and unemployment assistance act of 1974was paid on the basis of such services, and which:
(i) Are agricultural labor as defined in subsection (w) of K.S.A. 44-703,and amendments thereto, or domestic service as defined insubsection (aa) of K.S.A. 44-703, and amendments thereto, or
(ii) are services performed by an employee of this state or apolitical subdivision thereof, as provided in subsection (i)(3)(E) ofK.S.A. 44-703, and amendments thereto, or
(iii) are services performed by an employee of a nonprofiteducational institution which is not an institution of higher education.
(H) No contributing employer or rated governmentalemployer's accountshall be charged with respect to their pro rata share of benefit charges ifsuch charges are of $100 or less.
(3) The examiner shall notify any base period employer whose accountwill be charged with benefits paid following the filing of a valid newclaim and a determination by the examiner based on all information relatingto the claim contained in the records of the division of employmentsecurity. Suchnotice shall become final and benefits charged to the base periodemployer's account in accordance with the claim unless within 10 calendardays from the date the notice was sent, the base period employer requestsin writing that the examiner reconsider the determination and furnishes anyrequired information in accordance with the secretary's rules andregulations. In a similar manner,a notice of an additional claim followed by the first payment of benefitswith respect to the benefit year, filed by an individual during a benefityear after a period in such year during which such individual was employed,shall be given to any base period employer of the individual who has requestedsuch a notice within 10 calendar days from the date the notice of the validnew claim was sent to such base period employer.For purposes of this subsection (c)(3), if the required information is notsubmitted or postmarked within a response time limit of 10 days after the baseperiod employer notice was sent, the base period employershall be deemed to have waived its standing as a party to the proceedingsarising from the claim and shall be barred from protesting any subsequentdecisions about the claim by the secretary, a referee, the board of reviewor any court, except that the base period employer's response time limitmay be waived or extended by the examiner or upon appeal, if timelyresponse was impossible due to excusable neglect. The examiner shall notifythe employer of the reconsidered determination which shall be subject toappeal, or further reconsideration, in accordance with the provisions ofK.S.A. 44-709 and amendments thereto.
(4) Time, computation and extension. In computing the period oftime for a base period employer response or appeals under this section fromthe examiner's or the special examiner's determination or from thereferee's decision, the day of the act, event or default from which thedesignated period of time begins to run shall not be included. The last dayof the period shall be included unless it is a Saturday, Sunday or legalholiday, in which event the period runs until the end of the next day whichis not a Saturday, Sunday or legal holiday.
(d) Pooled fund. All contributions and payments in lieu ofcontributions and benefit cost payments to the employment security fundshall be pooled and available to pay benefits to any individual entitledthereto under the employmentsecurity law, regardless of the source of such contributions or payments inlieu of contributions or benefit cost payments.
(e) Election to become reimbursing employer; payment in lieu ofcontributions. (1) Any governmental entity, Indian tribes or tribalunits, (subdivisions, subsidiaries or business enterprises wholly owned by suchIndian tribes),for which services areperformed as described in subsection (i)(3)(E) of K.S.A.44-703, and amendments thereto, or any nonprofit organization orgroup ofnonprofit organizations described insection 501(c)(3) of the federal internal revenue code of1986 which is exempt fromincome tax under section 501(a) of such code, that becomes subject to theemployment security law may elect to become a reimbursing employer under thissubsection (e)(1) and agree to pay thesecretary for the employment security fund an amount equal to the amountof regular benefitsand 1/2 of the extended benefits paid that are attributableto service in the employ of such reimbursing employer, except that eachreimbursing governmental employer, Indian tribes or tribal units shallpay an amount equal to theamount of regular benefits and extended benefits paid for weeks ofunemployment beginning after December 31, 1978, for governmental employersand December 21, 2000, for Indian tribes or tribal units to individuals forweeks of unemployment which begin during the effective period of such election.
(A) Any employer identified in this subsection (e)(1) may elect tobecome a reimbursing employer for a period encompassing not less thanfour complete calendar years if such employer files with thesecretary a written notice of such election within the30-day period immediately following January 1 of anycalendar year orwithin the 30-day period immediately following thedate on which adetermination ofsubjectivity to the employment security law is issued, whichever occurs later.
(B) Any employer which makes an election to become a reimbursingemployer in accordance with subparagraph (A) of this subsection (e)(1)will continue to be liable for payments in lieu of contributions untilsuch employer files with the secretary a written notice terminating itselection not later than 30 days prior to the beginning of thecalendar year for which such termination shall first be effective.
(C) Any employer identified in this subsection (e)(1) which hasremained a contributing employer and has been paying contributions underthe employment security law for a period subsequent to January 1, 1972, maychange to a reimbursing employer by filing with the secretary not later than 30days prior to the beginning of any calendar year a written noticeof election to become a reimbursing employer. Such election shall not beterminable by the employer for four complete calendar years.
(D) The secretary may for good cause extend the period within whicha notice of election, or a notice of termination, must be filed and maypermit an election to be retroactive but not any earlier than withrespect to benefits paid after January 1 of the yearsuch election is received.
(E) The secretary, in accordance with such rules and regulations as thesecretary may adopt, shall notify each employer identified insubsection (e)(1) of any determination which the secretarymay make of itsstatus as an employer and of the effective date of any election which itmakes to become a reimbursing employer and of any termination of suchelection. Such determinations shall be subject to reconsideration,appeal and review in accordance with the provisions of K.S.A.44-710b and amendments thereto.
(2) Reimbursement reports and payments. Payments in lieu ofcontributions shall be made in accordance with the provisions of paragraph(A) of this subsection (e)(2) by all reimbursing employersexcept the state of Kansas. Each reimbursing employer shallreport total wages paid during each calendar quarter by filingquarterly wage reports with the secretary which shall be filed by the lastday of the month following the close of each calendar quarter. Wage reports aredeemed filed as of the date they are placed in the United States mail.
(A) At the end of each calendar quarter, or at the end of any otherperiod as determined by the secretary, the secretary shall bill eachreimbursing employer, except the state of Kansas, (i) an amount to bepaid which is equal to the full amount of regular benefits plus 1/2of the amount of extended benefits paid during such quarter orother prescribed period that is attributable to service in the employ ofsuch reimbursing employer; and (ii) for weeks of unemployment beginningafter December 31, 1978, each reimbursing governmental employer and December21, 2000, for Indian tribes or tribal units shall becertified an amount to be paid which is equal to the full amount ofregular benefits and extended benefits paid during such quarter or otherprescribed period that is attributable to service in the employ of suchreimbursing governmental employer.
(B) Payment of any bill rendered under paragraph (A) of this subsection(e)(2) shall be made not later than 30 days after such bill was mailed tothe last known address of the reimbursing employer, or otherwise wasdelivered to such reimbursing employer, unless there has been anapplication for review and redetermination in accordance with paragraph(D) of this subsection (e)(2).
(C) Payments made by any reimbursing employer under the provisions of thissubsection (e)(2) shall not be deducted or deductible, in whole or in part,from the remuneration of individuals in the employ of such employer.
(D) The amount due specified in any bill from the secretary shall beconclusive on the reimbursing employer, unless, not later than 15 days afterthe bill was mailed to the last known address of suchemployer, or was otherwise delivered to such employer, the reimbursingemployer files an application for redetermination in accordance withK.S.A. 44-710b and amendments thereto.
(E) Past due payments of amounts certified by the secretary underthis section shall be subject to the same interest, penalties andactions required by K.S.A. 44-717 and amendments thereto. (1) Ifany nonprofit organization or group of nonprofit organizations described insection 501(c)(3) of the federal internal revenue code of 1986 or governmentalreimbursing employer is delinquent in making payments of amountscertified by the secretary under this section, the secretary mayterminate such employer's election to make payments in lieu ofcontributions as of the beginning of the next calendar year and suchtermination shall be effective for such next calendar year and the calendaryear thereafter so that the termination is effective for two complete calendaryears. (2) Failure of the Indian tribe or tribal unit to make requiredpayments,including assessment of interest and penalty within 90 days of receipt of thebill will cause the Indian tribe to lose the option to make payments in lieu ofcontributions as described pursuant to paragraph (e)(1) for the following taxyear unless payment in full is received before contribution rates for the nexttax year are calculated. (3) Any Indian tribe that loses the option to makepayments in lieu of contributions due to late payment or nonpayment, asdescribed in paragraph (2), shall have such option reinstated, if after aperiod of one year, all contributions have been made on time and nocontributions, payments in lieu of contributions for benefits paid, penaltiesor interest remain outstanding.
(F) Failure of the Indian tribe or any tribal unit thereof to make requiredpayments, including assessments of interest and penalties, after all collectionactivities deemed necessary by the secretary have been exhausted, will causeservices performed by such tribe to not be treated as employment for purposesof subsection (i)(3)(E) of K.S.A. 44-703 and amendments thereto. If an Indiantribe fails to make payments required under this section, including assessmentsof interest and penalties, within 90 days of a final notice of delinquency, thesecretary shall immediately notify the United States internal revenue serviceand the United States department of labor. Thesecretary may determine that any Indian tribe that loses coverage pursuant tothis paragraph may have services performed on behalf of such tribe again deemed"employment" if all contributions, payments in lieu of contributions, penaltiesand interest have been paid.
(G) In the discretion of the secretary, any employer who elects tobecome liable for payments in lieu of contributions and any nonprofitorganization or group of nonprofit organizations described in section 501(c)(3) of the federal internal revenue code of 1986 or governmentalreimbursing employer or Indian tribe or tribal unit who is delinquent infiling reports or inmaking payments of amounts certified by the secretary under this sectionshall be required within 60 days after the effective date of such election,in the case of an eligible employer so electing, or after the date ofnotification to the delinquent employer under this subsection(e)(2)(G), inthe case of a delinquent employer, to execute and file with the secretary asurety bond, except that the employer may elect, in lieu of a surety bond,to deposit with the secretary money or securities as approved by thesecretary or to purchase and deliver to an escrow agent a certificate ofdeposit to guarantee payment. The amount of the bond,deposit or escrow agreement required bythis subsection(e)(2)(G) shall not exceed 5.4% of the organization'staxable wages paidfor employment by the eligible employer during the four calendar quartersimmediately preceding the effective date of the election or the date ofnotification, in the case of a delinquent employer. If the employer did notpay wages in each of such four calendar quarters, the amount of the bond ordeposit shall be as determined by the secretary. Upon the failure of anemployer to comply with this subsection (e)(2)(G)within the time limitsimposed or to maintain the required bond or deposit, the secretary mayterminate the election of such eligible employer or delinquent employer, asthe case may be, to make payments in lieu of contributions, and suchtermination shall be effective for the current and next calendar year.
(H) The state of Kansas shall make reimbursement paymentsquarterly ata fiscal year rate which shall be based upon: (i) The available balancein the state's reimbursing account as of December 31 of each calendar year;(ii) the historical unemployment experience of all covered state agenciesduring prior years; (iii) the estimate of total covered wages to be paidduring the ensuing calendar year; (iv) the applicable fiscal year rate ofthe claims processing and auditing fee under K.S.A. 75-3798 andamendments thereto; and (v) actuarial and other information furnished tothe secretary by the secretary of administration. In accordance with K.S.A.75-3798, and amendments thereto, the claims processing and auditing feescharged to state agencies shall be deducted from the amounts collected for thereimbursement payments under this paragraph (H) prior tomaking thequarterly reimbursement payments for the state of Kansas. The fiscalyear rate shall be expressed as a percentage of covered total wages andshall be the same for all covered state agencies.The fiscal year rate for each fiscal year will be certified in writing bythe secretary to the secretary of administration on July 15 of each yearand such certified rate shall become effective on the July 1 immediatelyfollowing the date of certification. A detailed listing of benefit chargesapplicable to the state's reimbursing account shall be furnished quarterlyby the secretary to the secretary of administration and the total amountof charges deducted from previous reimbursing payments made by the state.On January 1 of each year, if it is determined that benefit charges exceedthe amount of prior reimbursing payments, an upward adjustment shall bemade therefor in the fiscal year rate which will be certified on the ensuingJuly 15. If total payments exceed benefit charges, all or part of the excessmay be refunded, at the discretion of the secretary, from the fund or retainedin the fund as part of the payments which may be required for the next fiscalyear.
(3) Allocation of benefit costs. The reimbursing account ofeach reimbursing employer shall be charged the full amount of regularbenefits and 1/2 of the amount of extended benefits paid exceptthat each reimbursing governmental employer's account shall be chargedthe full amount of regular benefits and extended benefits paid for weeksof unemployment beginning after December 31, 1978, to individualswhose entire base period wage credits are from such employer. Whenbenefits received by an individual are based upon base period wagecredits from more than one employer then the reimbursing employer's orreimbursing governmental employer's account shall be charged in the sameratio as base period wage credits from such employer bear to theindividual's total base period wage credits. Notwithstanding any otherprovision of the employment security law, no reimbursing employer's orreimbursing governmental employer's account shall be charged forpayments of extended benefits which are wholly reimbursed to the stateby the federal government.
(A) Proportionate allocation (when fewer than all reimbursingbase period employers are liable). If benefits paid to an individualare based on wages paid by one or more reimbursing employers and onwages paid by one or more contributing employers or rated governmentalemployers, the amount of benefits payable by each reimbursing employer shall bean amount which bears the same ratio to the total benefits paid to theindividual as the total base period wages paid to the individual by suchemployer bears to the total base period wages paid to the individual byall of such individual's base period employers.
(B) Proportionate allocation (when all base period employers arereimbursing employers). If benefits paid to an individual are based onwages paid by two or more reimbursing employers, the amount of benefitspayable by each such employer shall be an amount which bears the same ratioto the total benefits paid to the individual as the total base period wagespaid to the individual by such employer bear to the total base period wagespaid to the individual by all of such individual's base period employers.
(4) Group accounts. Two or more reimbursing employers mayfile a joint application to the secretary for the establishment of agroup account for the purpose of sharing the cost of benefits paid thatare attributable to service in the employment of such reimbursingemployers. Each such application shall identify and authorize a grouprepresentative to act as the group's agent for the purposes of this subsection(e)(4). Upon approval of the application, the secretaryshall establish a group account for such employers effective as of thebeginning of the calendar quarter in which the secretary receives theapplication and shall notify the group's representative of the effectivedate of the account. Such account shall remain in effect for not lessthan four years and thereafter such account shall remain in effectuntil terminated at the discretion ofthe secretary or upon application by the group. Upon establishment ofthe account, each member of the group shall be liable for payments inlieu of contributions with respect to each calendar quarter in theamount that bears the same ratio to the total benefits paid in suchquarter that are attributable to service performed in the employ of allmembers of the group as the total wages paid for service in employmentby such member in such quarter bear to the total wages paid during suchquarter for service performed in the employ of all members of the group.The secretary shall adopt such rules and regulations as the secretarydeems necessary with respect to applications for establishment, maintenanceand termination of group accounts that are authorized by this subsection(e)(4), for addition of new members to, and withdrawal of active membersfrom such accounts, and for the determination of the amounts that are payableunder this subsection (e)(4) by members of the group and the time and mannerof such payments.
History: L. 1937, ch. 255, § 10;L. 1941, ch. 264, § 7;L. 1943, ch. 190, § 5;L. 1945, ch. 220, § 5;L. 1947, ch. 292, § 1;L. 1949, ch. 288, § 5;L. 1953, ch. 247, § 1;L. 1963, ch. 276, § 1;L. 1970, ch. 191, § 6;L. 1971, ch. 180, § 4;L. 1972, ch. 192, § 2;L. 1973, ch. 205, § 6;L. 1974, ch. 205, § 1;L. 1975, ch. 261, § 1;L. 1976, ch. 370, § 62;L. 1977, ch. 181, § 4;L. 1979, ch. 159, § 4;L. 1981, ch. 205, § 1;L. 1982, ch. 216, § 2;L. 1984, ch. 184, § 3;L. 1987, ch. 191, § 5;L. 1988, ch. 343, § 1;L. 1989, ch. 150, § 3;L. 1990, ch. 186, § 4;L. 1996, ch. 232, § 3;L. 1997, ch. 19, § 2;L. 1998, ch. 167, § 1;L. 2001, ch. 139, § 3;L. 2002, ch. 84, § 3;L. 2003, ch. 96, § 4;L. 2004, ch. 105, § 4;L. 2004, ch. 179, § 59;L. 2008, ch. 105, § 2; July 1.