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Oregon Bulletin

February 1, 2014

Employment Department, Chapter 471

Rule Caption: 2013 Unemployment Insurance Updates per Legislative Session

Adm. Order No.: ED 1-2014

Filed with Sec. of State: 1-3-2014

Certified to be Effective: 2-23-14

Notice Publication Date: 10-1-2013

Rules Adopted: 471-030-0058, 471-030-0083

Rules Amended: 471-030-0036, 471-030-0040, 471-030-0045, 471-030-0052, 471-030-0053, 471-030-0210, 471-031-0151, 471-040-0020

Rules Repealed: 471-030-0078, 471-030-0040(T), 471-030-0045(T), 471-030-0053(T), 471-030-0058(T), 471-030-0052(T)

Subject: 471-030-0036 — Updates to eligibility requirements.

   471-030-0040 — Updates to initial claims, additional claims, and reopened claims.

   471-030-0045 — Updates to continued claims.

   471-030-0052 — Updates to fraud penalty and cancellation of penalty weeks.

   471-030-0053 — Updates to waiving overpayment recovery.

   471-030-0058 — New rule, establishes rules for Treasury Offset Payment program.

   471-030-0078 — Repeals rule relating to offshore workers.

   471-030-0083 — New rule regarding employer non-relief of charges for pattern of not responding.

   471-030-0210 — Updates to electronic notices for interstate reciprocal overpayment recoveries.

   471-031-0151 — Updates to good cause regarding tax filing deadlines.

   471-040-0020 — Updates to permissible fees for representing UI claimants.

Rules Coordinator: Courtney Brooks—(503) 947-1724

471-030-0036

Eligibility Factors

(1) In considering suitable work factors under ORS 657.190 and for purposes of determining eligibility under 657.155(1)(c), the Director may require an individual to actively seek the type of work the individual is most capable of performing due to prior job experience and training except that:

(a) If an individual is unable to secure the individual’s customary type of work after contacting the potential employers in the labor market where benefits are being claimed, the Director may require the individual to seek less desirable but similar work or work of another type which the individual is capable of performing by virtue of experience and training.

(b) If the type of work an individual is most capable of performing does not exist in the labor market where the individual is claiming benefits, the Director may require the individual to seek any work that exists in the labor market for which the individual is suited by virtue of experience and training.

(c) After the individual has contacted the potential employers in the labor market where benefits are being claimed and is still unable to obtain work as described in (1)(a) and (b) of this section, the Director may require the individual to further expand work-seeking activities.

(2) For the purposes of ORS 657.155(1)(c), an individual shall be considered able to work in a particular week only if physically and mentally capable of performing the work he or she actually is seeking during all of the week except:

(a) An occasional and temporary disability for less than half of the week shall not result in a finding that the individual is unable to work for that week; and

(b) An individual with a permanent or long-term “physical or mental impairment” (as defined at 29 CFR 1630.2(h)) which prevents the individual from working full time or during particular shifts shall not be deemed unable to work solely on that basis so long as the individual remains available for some work.

(3) For the purposes of ORS 657.155(1)(c), an individual shall be considered available for work if, at a minimum, he or she is:

(a) Willing to work full time, part time, and accept temporary work opportunities, during all of the usual hours and days of the week customary for the work being sought, unless such part time or temporary opportunities would substantially interfere with return to the individual’s regular employment; and

(b) Capable of accepting and reporting for any suitable work opportunities within the labor market in which work is being sought, including temporary and part time opportunities; and

(c) Not imposing conditions which substantially reduce the individual’s opportunities to return to work at the earliest possible time; and

(d) Physically present in the normal labor market area as defined by section (6) of this rule, every day of the week, unless:

(A) The individual is actively seeking work outside his or her normal labor market area; or

(B) The individual is infrequently absent from the normal labor market area for reasons unrelated to work search, for less than half of the week, and no opportunity to work or referral to work was missed by such absence.

(e) However, an individual with a permanent or long-term physical or mental impairment (as defined at 29 CFR 1630.2(h)) which prevents the individual from working full time or during particular shifts shall not be deemed unavailable for work solely on that basis so long as the individual remains available for some work.

(f) For the purposes of ORS 657.155(1)(c), an individual is not available for work in any week claimed if:

(A) The individual has an opportunity to perform suitable work during the week and fails to accept or report for such work due to illness, injury or other temporary physical or mental incapacity.

(B) During the week, the individual is incarcerated during any days or hours customary for the type of work the individual is seeking.

(i) “Incarcerated” means in custody at a city, county, state, or federal law enforcement or correctional facility to include any “arrest” as defined in ORS 133.005 or a similar law in another state or jurisdiction.

(ii) When an individual is in an alternative sentencing facility operated pursuant to a community corrections plan that individual will not be considered unavailable for work solely because of their non-traditional custody. Alternative sentencing is defined by the jurisdiction responsible for supervision of the suspect or offender.

(iii) “Incarcerated” does not include a “stop” as authorized under ORS 131.605 to 131.625.

(iv) “Incarcerated” does not mean being involved in questioning by peace officers as part of an investigation where the individual is free to leave and not charged with a crime.

(g) An individual will be considered not available for work if he or she fails or refuses to seek the type of work required by the Director pursuant to section (1) of this rule.

(h) Providing the individual is otherwise eligible for benefits pursuant to OAR 471-030-0036(3)(a) through (g), a person who has been found to be qualified for benefits under the provisions of ORS 657.176(2)(f) or (g) or 657.176(9)(b)(A) shall be considered available for work only during weeks in which the individual is enrolled in and participating in a recognized drug or alcohol treatment program if such participation was a condition in the determination to allow benefits. This provision does not apply if the individual has satisfactorily completed the course of treatment in accordance with the terms and conditions of the recognized treatment program.

(A) An individual is participating when engaged in a course of treatment through a recognized drug or alcohol rehabilitation program;

(B) A recognized drug or alcohol rehabilitation program is a program authorized and licensed under the provisions of OAR chapter 415.

(i) An individual is not available for work in any week claimed under ORS 657.155 if the individual resides or spends the major portion of the week:

(A) In Canada unless the individual is authorized to work in both the United States and Canada;

(B) In a country not included in the Compact of Free Association with the United States of America; or

(C) outside of the United States, District of Columbia or any territory or political division that is directly overseen by the United States federal government; except,

(i) If the individual is the spouse or domestic partner of an individual stationed at a military base or embassy located outside the United States;

(ii) Job opportunities exist on the military base or embassy for family members of those stationed there;

(iii) The individual lives within a reasonable commuting distance to job opportunities at the military base or embassy; and

(iv) The individual is willing to accept the conditions and terms of the available employment provided they are not inconsistent with ORS 657.195.

(4) Notwithstanding the provisions of OAR 471-030-0036(3), an individual who is the parent, step-parent, guardian or other court/legally-appointed caretaker of a child under 13 years of age or of a child with special needs under the age of 18 who requires a level of care over and above the norm for his or her age, who is not willing to or capable of working a particular shift because of a lack of care for that child acceptable to the individual shall be considered available for work if:

(a) The work the individual is seeking is customarily performed during other shifts in the individual’s normal labor market area as defined by OAR 471-030-0036(6); and

(b) The individual is willing to and capable of working during such shift(s).

(5)(a) For purposes of ORS 657.155(1)(c) an individual is actively seeking work when doing what an ordinary and reasonable person would do to return to work at the earliest opportunity. Unless otherwise directed by the director or an authorized representative of the employment department, an individual who is not on temporary layoff as described in subsection (b), is not a union member as described in subsection (d), nor is filing a continued claim for the first week of an initial or additional claim as described in subsection (e), shall be required to conduct at least five work seeking activities per week, with at least two of those being direct contact with an employer who might hire the individual.

(A) Work seeking activities include but are not limited to registering for job placement services with the Employment Department, attending job placement meetings sponsored by the Employment Department, participating in a job club or networking group dedicated to job placement, updating a resume, reviewing the newspaper or job placement web sites without responding to a posted job opening, and making direct contact with an employer.

(B) Direct contact with an employer means making contact with an employer in person, by phone, mail, or electronically to inquire about a job opening or applying for job openings in the manner required by the hiring employer.

(b) For an individual on temporary layoff of four weeks or less with the individual’s regular employer:

(A) If the individual had, as of the layoff date, been given a date to return to full-time work or work for which remuneration is paid or payable that equals or exceeds the individual’s weekly benefit amount, such individual is actively seeking work by remaining in contact with and being capable of accepting and reporting for any suitable work with that employer for a period of up to four calendar weeks following the end of the week in which the temporary layoff occurred. The individual no longer meets the requirements of this subsection if four calendar weeks have passed following the week in which the temporary layoff occurred, therefore the individual must seek work consistent with subsection (a) of this section in addition to the individual’s regular employer.

(B) The individual does not meet the requirements of this subsection if the individual had not, as of the layoff date, been given a date to return to full-time work or work for which remuneration is paid or payable that equals or exceeds the individual’s weekly benefit amount.

(c) For an individual on temporary layoff of more than four weeks with the individual’s regular employer: such individual must immediately seek work consistent with the requirements of subsection (a) of this section

(d) For an individual who is a member in good standing of a union that does not allow members to seek non-union work, such individual is actively seeking work by remaining in contact with that union and being capable of accepting and reporting for work when dispatched by that union.

(e) For an individual who is filing a continued claim for the first week of an initial or additional claim:

(A) If the individual worked less than full time and remuneration paid or payable to the individual for services performed during the week is less than the individual’s weekly benefit amount, each day the individual worked for the employer shall be considered a direct employer contact.

(B) An individual does not meet the requirements of this subsection if the individual performed no work for an employer during the first week of an initial or additional claim; therefore the individual must seek work consistent with subsection (a) of this section

(f) In determining whether to modify the requirements in this section for an individual the Employment Department may consider among other factors, length of unemployment, economic conditions in the individual’s labor market and prospective job openings, weather conditions affecting occupations or industries, seasonal aspects of the individual’s regular occupation, expected date of return to work in regular occupation, seniority status of individual, registration with a union hiring hall and normal practices for obtaining the type of work which the individual is seeking pursuant to section (1) of this rule. The Department shall provide a written copy of the work search requirements to the individual if the individual’s work search requirements are modified.

(6)(a) An individual’s normal labor market shall be that geographic area surrounding the individual’s permanent residence within which employees in similar circumstances are generally willing to commute to seek and accept the same type of work at a comparable wage. The geographic area shall be defined by employees of the adjudicating Employment Department office, based on criteria set forth in this section;

(b) When an individual seeks work through a union hiring hall, the individual’s normal labor market area for the work sought is the normal referral jurisdiction of the union, as indicated by the applicable contract.

(7) Nothing in this rule shall prohibit an individual who is a citizen, permanent legal resident, or otherwise legally authorized to work in the United States from seeking work in other labor market areas in any state or country.

Stat. Auth.: ORS 657.610 & 657.155

Stats. Implemented: ORS 657.155,657.190, 657.195 & 657.260

Hist.: 1DE 151, f. 9-28-77, ef. 10-4-77; 1DE 4-1979(Temp), f. & ef. 7-5-79; 1DE 5-1979, f. & ef. 8-27-79; 1DE 1-1982, f. & ef. 6-30-82; ED 2-1992, f. & cert. ef. 6-29-92; ED 5-1994(Temp), f. 10-13-94, cert. ef. 10-16-94; ED 2-1997, f. 10-24-97, cert. ef. 11-3-97; ED 5-2003, f. 4-11-03, cert. ef. 4-13-03; ED 8-2004, f. 12-17-04, cert. ef. 12-19-04; ED 1-2006. f. 1-5-06, cert. ef. 1-8-06; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14

471-030-0040

Initial, Additional, and Reopened Claims

(1) As used in these rules, unless the context requires otherwise:

(a) “Claimant” is an individual who has filed an initial, additional, or reopened claim for unemployment insurance purposes within a benefit year or other eligibility period;

(b) An “initial claim” is a new claim that is a certification by a claimant completed as required by OAR 471-030-0025 to establish a benefit year or other eligibility period;

(c) “Additional claim” is a claim certification by a claimant completed as required by OAR 471-030-0025 that restarts a claim during an existing benefit year or other eligibility period and certifies to the end of a period of employment;

(d) “Reopened claim” is a certification by a claimant completed as required by OAR 471-030-0025 that restarts a claim during an existing benefit year or other eligibility period and certifies that there was no employment in any week since last reporting on this claim;

(e) “Backdating” occurs when an authorized representative of the Employment Department corrects, adjusts, resets or otherwise changes the effective date of an initial, additional or reopened claim to reflect filing in a prior week. Backdating may occur based upon evidence of the individual’s documented contact on the prior date with the Employment Department or with any other state Workforce agency, or as otherwise provided in this rule.

(2) For the purposes of filing an initial, additional, or reopened claim:

(a) When delivered in person to any Employment Department office in the state of Oregon, the date of filing shall be the date of delivery, as evidenced by the receipt date stamped or written by the public employee who receives the document;

(b) When filed by mail, the date of filing shall be the date of the postmark affixed by the United States Postal Service. In the absence of a postmarked date, the date of filing shall be the most probable date of mailing as determined by the Employment Department;

(c) When filed by fax, the date of filing shall be the encoded date on the fax document unless such date is absent, illegible, improbable or challenged, in which case the fax receipt date, if available, shall be the date of filing. If a filing date cannot otherwise be determined, the filing date shall be the most probable date of faxing as determined by the Employment Department;

(d) When filed by Internet, the date of filing shall be the initial date of transmission of the online claim; or

(e) When filed by telephone, the date of filing shall be the date recorded in the completed telephone initial claim record of the agency system or by an employee completing the filing of the claim record.

(f) An incomplete certification must be completed and returned within seven business days from the date of notification that the original was incomplete to preserve the original date of filing.

(3) An initial, additional, or reopened claim must be filed prior to or during the first week or series of weeks for which benefits, waiting week credit, or noncompensable credit is claimed and prior to or during the first week of any subsequent series thereafter. An initial claim is effective the Sunday of the calendar week in which it is filed. An authorized representative of the Employment Department will backdate an additional or reopened claim to the calendar week immediately preceding the week in which the request to backdate was made when a claimant requests backdating of the additional or reopened claim.

(4) The provisions of this section do not apply to an individual claiming benefits as a “partially unemployed individual,” as defined in OAR 471-030-0060.

Stat. Auth.: ORS 657.610 & 657.155

Stats. Implemented: ORS 657.155 & 657.260

Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 152, f. 9-28-77, ef. 10-4-77; 1DE 1-1982, f. & ef. 6-30-82; ED 1-1987, f. & ef. 1-12-87; ED 14-2003, f. 12-12-03 cert. ef. 12-14-03; ED 2-2013(Temp), f. 8-22-13, cert. ef. 9-1-13 thru 2-26-14; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14

471-030-0045

Continued Claims

(1) As used in these rules, unless the context requires otherwise:

(a) “Continued Claim” means an application that certifies to the claimant’s completion of one or more weeks of unemployment and to the claimant’s status during these weeks. The certification may request benefits, waiting week credit, or non-compensable credit for such week or weeks. A continued claim must follow the first effective week of an initial, additional or reopen claim, or the claimant’s continued claim for the preceding week;

(b) A “non-compensable credit week” is a week of unemployment for which benefits will not be allowed but which may qualify as a week allowed toward satisfying a disqualification as provided in ORS 657.215.

(2) A claimant, in order to obtain benefits, waiting week credit, or non-compensable credit for a week of unemployment, must file a continued claim for the week by any method approved by the Director.

(3) As directed by the Director, a continued claim must be filed:

(a) In person at any Employment Department office in the state of Oregon. When delivered in person to any Employment Department office in the state of Oregon, the date of filing shall be the date of delivery, as evidenced by the receipt date stamped or written by the public employee who receives the document;

(b) By United States mail. When filed by mail, the date of filing shall be the date of the postmark affixed by the United States Postal Service. In the absence of a postmarked date, the date of filing shall be the most probable date of mailing as determined by the Employment Department;

(c) By fax. When filed by fax, the date of filing shall be the encoded date on the fax document unless such date is absent, illegible, improbable or challenged, in which case the fax receipt date, if available, shall be the date of filing. If a filing date cannot otherwise be determined, the filing date shall be the most probable date of faxing as determined by the Employment Department;

(d) By Internet. When filed on line, the date of filing shall be the initial date of transmission of the on line continued claim; or

(e) By telephone. When filed by telephone, the date of filing shall be the date marked, stamped, or imprinted on the document by the agency system that records the oral request or by the employee accepting the continued claim.

(4) A continued claim must be filed no later than seven days following the end of the week for which benefits, waiting week credit, or noncompensable credit, or any combination of the foregoing is claimed, unless:

(a) The continued claim is for the first effective week of the benefit year, in which case the week must be claimed no later than 13 days following the end of the week for which waiting week credit is claimed, or

(b) The claimant routinely files weekly claims by submitting a weekly paper certification forms, in which case the week is timely if it is filed to the Employment Department no later than seven days, as per sections (3)(a)–(c) of this rule, after the Employment Department originally sent the paper certification form to the claimant.

(5) The Director may, with respect to individual claimants or groups of claimants, direct that continued claims be filed on any reporting schedule appropriate to existing facilities and conditions.

(6) The provisions of this rule do not apply to an individual claiming benefits as a “partially unemployed individual,” as defined in OAR 471-030-0060.

Stat. Auth.: ORS 657.610 & 657.155

Stats. Implemented: ORS 657.155 & 657.260

Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 152, f. 9-28-77, ef. 10-4-77; 1DE 3-1981, f. & ef. 2-16-81; 1DE 1-1984, f. & ef. 3-21-84; ED 4-1993, f. & cert. ef. 11-22-93; ED 4-1994, f. & cert. ef. 9-2-94; ED 14-2003, f. 12-12-03 cert. ef. 12-14-03; ED 2-2013(Temp), f. 8-22-13, cert. ef. 9-1-13 thru 2-26-14; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14

471-030-0052

Misrepresentation Disqualification

(1) An authorized representative of the Employment Department shall determine the number of weeks of disqualification under ORS 657.215 according to the following criteria:

(a) When the disqualification is imposed because the individual failed to accurately report work and/or earnings, the number of weeks of disqualification shall be determined by dividing the total amount of benefits overpaid to the individual for the disqualifying act(s), by the maximum Oregon weekly benefit amount in effect during the first effective week of the initial claim in effect at the time of the individual’s disqualifying act(s), rounding off to the nearest two decimal places, multiplying the result by four rounding it up to the nearest whole number.

(b) When the disqualification is imposed because the disqualifying act(s) under ORS 657.215 relates to the provisions of 657.176, the number of weeks of disqualification shall be the number of weeks calculated in the same manner as under subsection (a) above, or four weeks, whichever is greater.

(c) When the disqualification is imposed because the disqualifying act(s) relates to the provisions of ORS 657.155 (other than work and/or earnings), the number of weeks of disqualification shall be the number of weeks calculated in the same manner as under subsection (a) above, or the number of weeks in which a disqualifying act(s) occurred, whichever is greater.

(d) When the disqualification is imposed because the disqualifying act(s) under ORS 657.215 relates to the provisions of 657.176 and a failure to accurately report work and/or earnings, the number of weeks of disqualification shall be the number of weeks calculated in the manner set forth in subsection (a) plus four weeks.

(e) When the disqualification is imposed because the disqualifying act(s) relates to the provisions of ORS 657.155 (other than work and/or earnings) and a failure to accurately report work and/or earnings, the number of weeks of disqualification shall be the number of weeks calculated in the manner set forth in subsection (a) plus the number of weeks in which a disqualifying act(s) occurred relating to the provisions of 657.155 (other than work and earnings).

(2) The number of weeks of disqualification assessed under section (1) of this rule shall be doubled, but not to exceed 52 weeks, if the individual has one previous disqualification under ORS 657.215, and that prior disqualification determination has become final.

(3) Notwithstanding sections (1) and (2) of this rule, the number of weeks of disqualification under ORS 657.215 shall be 52 weeks if:

(a) The disqualification under ORS 657.215 is because the individual committed forgery; or

(b) The individual has two previous disqualifications under ORS 657.215, and those prior two disqualification determinations have become final.

(4) Notwithstanding Sections (1), (2) and (3), an authorized representative of the Employment Department may determine the number of weeks of disqualification according to the circumstances of the individual case, but not to exceed 52 weeks.

(5) All disqualifications imposed under ORS 657.215 shall be served consecutively.

(6) Any week of disqualification imposed under ORS 657.215 may be satisfied by meeting all of the eligibility requirements of Chapter 657, other than 657.155(1)(e).

(7) The department will review the number of occurrences of misrepresentation when applying the penalty as described in ORS 657.310(2). An occurrence shall be counted each time an individual willfully makes a false statement or representation, or willfully fails to report a material fact to obtain benefits. The department shall use the date the individual failed to report a material fact or willfully made a false statement as the date of the occurrence. For an individual subject to disqualification by administrative action under 657.215, the penalty will be:

(a) For the first or second occurrence within 5 years of the occurrence for which a penalty is being assessed, 15 percent of the total amount of benefits the individual received but to which the individual was not entitled.

(b) For the third or fourth occurrence within 5 years of the occurrence for which a penalty is being assessed, 20 percent of the total amount of benefits the individual received but to which the individual was not entitled.

(c) For the fifth or sixth occurrence within 5 years of the occurrence for which a penalty is being assessed, 25 percent of the total amount of benefits the individual received but to which the individual was not entitled.

(d) For the seventh or greater occurrence within 5 years of the occurrence for which a penalty is being assessed, 30 percent of the total amount of benefits the individual received but to which the individual was not entitled.

(e) In cases of forgery or identity theft, 30 percent of the amount of benefits the individual received but to which the individual was not entitled.

(8)(a) Under ORS 657.215, the Director or an authorized representative of the Employment Department may determine it is proper and equitable to cancel the disqualification if:

(A) All benefits, interest, penalties, fees, and court costs have been paid in full;

(B) Three or more years have passed since the decision assessing the number of weeks of disqualification was issued; and

(C) The department has issued only one decision assessing weeks of disqualification to the individual within the last 10 years from the date of the request to cancel.

(b) For the purposes of the section (c) of this rule, an “occurrence” is each time an individual willfully makes a false statement or representation, or willfully fails to report a material fact to obtain benefits within the same willful misrepresentation decision.

(c) The Director or an authorized representative of the Employment Department shall determine the amount of weeks applicable for cancellation under ORS 657.215 according to the following criteria:

(A) The individual has satisfied the requirements of subsection (a);

(B) When the individual has committed one occurrence of violating ORS 657.215 within the same willful misrepresentation decision, the director may cancel the remaining weeks of disqualification in whole.

(C) When the individual has committed two occurrences of violating ORS 657.215 within the same willful misrepresentation decision, the director may cancel half the weeks of disqualification.

(D) When the individual has committed three or more occurrences of violating ORS 657.215 within the same willful misrepresentation decision or the disqualification under 657.215 is because the individual committed forgery, weeks of disqualification shall not be cancelled.

(d) Weeks of disqualification served prior to the request for cancellation shall not be cancelled.

Stat. Auth.: ORS 657.610 & 657.155

Stats. Implemented: ORS 657.155, 657.215 & 657.310

Hist.: 1DE 151, f. 9-28-77, ef. 10-4-77; ED 10-2003, f. 7-25-03, cert. ef. 7-27-03; ED 3-2008(Temp), f. & cert. ef. 2-15-08 thru 8-13-08; ED 8-2008, f. 5-20-08, cert. ef. 7-1-08; ED 3-2013(Temp), f. 9-10-13, cert. ef. 10-1-13 thru 3-28-14; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14

471-030-0053

Waiving Recovery of Overpayments

(1) This rule addresses waiving recovery of overpayments pursuant to ORS 657.317.

(2) Recovering overpaid benefits is against equity and good conscience if the person requesting a waiver has no means to repay the benefits and has total allowable household expenses that equal or exceed 90% of the total household income less unemployment benefits. The Employment Department will use the IRS Collection Financial Standards to determine maximum allowable household expenses. The Employment Department may allow expenses higher than those provided for in the IRS Collection Financial standards if the person requesting a waiver provides documents showing that using those IRS Collection Financial Standards would leave him or her an inadequate means of providing for basic living expenses.

(3) If a waiver is granted, the Department will stop collection activity of the overpaid benefits that are waived. The Department will give written notice of any waivers that are granted, indicating the amount of the overpaid benefits for which the waiver is granted, and the time period of the waiver.

(4) The amount of overpaid benefits that are waived will be removed from the balance of remaining benefits that the claimant has remaining on the claim during the duration of the waiver of recovery of benefits.

(5) Waivers are effective the Sunday of the week in which the request for waiver was filed with the Employment Department. The date of the post mark from the United States Postal Service, a date stamp from an Employment Department office, or an embedded fax date, whichever is earliest, will be used to determine the date of filing.

(6) If a request for waiver of recovery is denied, the claimant may submit another request for waiver of recovery if his or her situation changes significantly enough to establish that recovery of the benefits would be against equity and good conscience. No such subsequent request will be granted unless the claimant explains the significant change in financial situation in writing and provides supporting documentation.

(7) If a waiver is granted but the Employment Department then determines a hardship no longer exists, or that the person who received the waiver gave inaccurate or incomplete information in the request for waiver, the Employment Department may end the waiver.

(8) If a request for a waiver of recovery is denied or if the Employment Department determines a hardship no longer exists and ends the waiver of recovery, the claimant will receive an administrative decision as defined in OAR 471-030-0039.

(9) Overpaid benefits that have been recovered prior to the filing of a waiver request will not be waived.

(10) If a person is paid more than once for the same week(s), only the amount in excess of the final entitlement is eligible to be waived.

(11) In applying ORS 657.317(4), a waiver will not be granted if the overpayment is a result of willful misrepresentation or fraud as established in 657.215

(12) Overpayments caused by the negotiation of an original and a replacement check that were issued for the same period pursuant to OAR 471-030-0049 will not be waived.

(13) The determination to waive recovery of overpayments under ORS 657.317 and this rule shall be made by employees authorized by the Director.

Stat. Auth.: ORS 657.610

Stats. Implemented: ORS 657.267, 657.268, 657.315 & 657.317

Hist.: ED 2-1995, f. 8-29-95, cert. ef. 9-3-95; ED 4-2011(Temp), f. & cert. ef. 6-29-11 thru 12-15-11; ED 11-2011, f. & cert. ef. 12-5-11; ED 2-2013(Temp), f. 8-22-13, cert. ef. 9-1-13 thru 2-26-14; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14

471-030-0058

Offset of Unemployment Compensation Debt Through U.S. Treasury Offset Program

(1) The Oregon Employment Department may submit liquidated unemployment insurance overpayments for offset against federal tax refunds through the “Treasury Offset Program” under 31 USC 3716(h) and 31 CFR 285.6. For purposes of this rule, liquidated means legally enforceable because:

(a) The liability is assessed by the department;

(b) The department has made written demand for payment of the liability;

(c) The claimant is not in bankruptcy; and

(d) All relevant appeal periods for contesting the liability have expired.

(2) Notice of intent to offset. Before submitting an unemployment insurance overpayment to Financial Management Service, U.S. Treasury for offset against a federal refund, the Oregon Employment Department must send written notice of intent to offset to the claimant by mail.

(3) Disagreement procedures. If a claimant disagrees with the notice of intent to offset and wants reconsideration, the claimant must submit a letter of disagreement within 60 days of the date shown on the notice of intent to offset. The claimant must provide, and the department will limit consideration to, evidence that the overpayment scheduled for offset is not:

(a) Past due; or

(b) Legally enforceable.

(4) If the claimant claims that the debt is not legally enforceable, the department will consider the merits of such a claim unless the issue has already been finally adjudicated by the Office of Administrative Hearings or Employment Appeals Board in a proceeding to which the department is a party.

(5) Review of disagreement. For each letter of disagreement provided by the claimant, the department will:

(a) Review evidence provided by the claimant, and

(b) Remove claimant’s name from the federal refund offset list for this debt if evidence supports the claimant’s position that the debt is not past due or legally enforceable.

Stat. Auth.: ORS 657.610

Stats. Implemented: ORS 657.610, 657.155, 657.260 & SB 259 2013

Hist.: ED 2-2013(Temp), f. 8-22-13, cert. ef. 9-1-13 thru 2-26-14; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14

471-030-0083

Employer Penalties

For the purposes of ORS 657.471:

(1) A request for information means when the Department asks an employer or its representative to provide the Department with information regarding Unemployment Insurance by:

(a) A written notice of claim filing as provided in ORS 657.265, where an individual was discharged, suspended, or voluntarily left work;

(b) Any communication made by mail, telephone, or electronically, to an employer or agent of the employer relating to a notice of claim filing as provided in ORS 657.265 regarding an individual’s discharge, suspension, or voluntary leaving work;

(c) Any communication made by mail, telephone, or electronically, to an employer or agent of the employer in order for the department to make a determination under ORS 657.215.

(2) An employer or agent of the employer has failed to respond timely when they do not respond within the time frame provided by the department to a request for information.

(3) An employer or agent of the employer has failed to respond adequately when:

(a) The employer or agent of the employer does not respond to a request for information; or

(b) The employer or agent of the employer responds to a request for information but provides incomplete or inaccurate information to the questions asked.

(4) An employer or agent of the employer has established a pattern when the employer or agent of the employer has failed to respond timely or adequately to the greater of:

(a) More than (2%) of the requests for information; or,

(b) More than (2) requests for information.

(5) For the purposes of this rule, the department will determine if the employer or agent of the employer has established a pattern of failing to respond timely or accurately to requests for information by reviewing requests for information during the previous twelve months ending the month prior to which the decision creating the overpayment of unemployment insurance benefits is issued.

Stat. Auth.: ORS 657.610

Stats. Implemented: 657.610, 657.155, 657.260 & 657.471

Hist.: ED 1-2014, f. 1-3-14, cert. ef. 2-23-14

471-030-0210

Interstate Reciprocal Overpayment Recovery Arrangement

(1) The following rules shall govern the Oregon Employment Department in its administrative cooperation with other States adopting similar regulations for the recovery of overpayments.

(2) Definitions: As used in these rules unless the context clearly requires otherwise:

(a) “State” includes the District of Columbia, Puerto Rico, and the Virgin Islands.

(b) “Offset” means the withholding of an amount against benefits which would otherwise be payable for a compensable week of unemployment.

(c) “Overpayment” means an improper payment of benefits, from a State or Federal unemployment compensation fund that has been determined recoverable under the Requesting State’s law.

(d) “Participating State” means a State which has subscribed to the Interstate Reciprocal Overpayment Recovery Arrangement.

(e) “Paying State” means the State under whose law a claim for unemployment benefits has been established on the basis of combining wages and employment covered in more than one State.

(f) “Recovering State” means the state that has received a request for assistance from a “Requesting State”.

(g) “Requesting State” means the State that has issued a final determination of overpayment and is requesting another State to assist it in recovering the outstanding balance from the overpaid individual.

(h) “Transferring State” means a State in which a Combined Wage claimant had covered employment and wages in the base period of a paying State, and which transfers such employment and wages to the paying State for its use in determining the benefit rights of such claimant under its law.

(i) “Liable State” means any state against which an individual files, through another state, a claim for benefits.

(3) Recovery of State or Federal Benefit Overpayments:

(a) Duties of the Requesting State. The requesting State shall:

(A) Send the recovering State a written request or a request using an approved electronic application for overpayment recovery assistance which includes:

(i) Certification that the overpayment is legally collectable under the requesting State’s law;

(ii) Certification that the determination is final and that any rights to postponement of recoupment have been exhausted or have expired;

(iii) A statement as to whether the State is participating in cross-program offset by agreement with the U.S. Secretary of Labor; and,

(iv) A copy of the initial overpayment determination and a statement of the outstanding balance.

(B) Send notice of this request to the claimant; and

(C) Send to the recovering State a new outstanding overpayment balance whenever the requesting State receives any amount of repayment from a source other than the recovering State (e.g., interception of tax refund, etc.).

(b) Duties of Recovering State. The Recovering State shall:

(A) Issue an overpayment recovery determination to the claimant which includes at a minimum:

(i) The statutory authority for the offset;

(ii) The name of the State requesting recoupment;

(iii) The date of the original overpayment determination;

(iv) Type of overpayment (fraud or nonfraud);

(v) Program type (UI, UCFE, UCX, TRA, etc.)

(vi) Total amount to be offset;

(vii) The amount to be offset weekly;

(viii) The right to request redetermination and appeal of the determination to recover the overpayment by offset.

(B) Offset benefits payable for each week claimed in the amount determined under State law; and

(C) Provide the claimant with a notice of the amount offset; and,

(D) Prepare and forward, no less than once a month, a payment representing the amount recovered made payable to the requesting State, except as provided in section (c) below.

(E) Retain a record of the overpayment balance in its files no later than the exhaustion of benefits, end of the benefit year, exhaustion or end of an additional or extended benefits period, or other extensions of benefits, whichever is later.

(F) The Recovering State shall not redetermine the original overpayment determination.

(c) Combined Wage Claims. When processing combined wage claims, the following shall apply:

(A) Recovery of Outstanding Overpayment in Transferring State. The paying State shall:

(i) Offset any outstanding overpayment in a Transferring State(s) prior to honoring a request from any other “Participating State” under this Arrangement.

(ii) Credit the deductions against the Statement Of Benefits Paid To Combined Wage Claimants, Form IB-6 or forward a check to the Transferring State as described in (b)(D).

(B) Withdrawal of Combined Wage Claim After Benefits Have Been Paid. Withdrawal of a Combined Wage Claim after benefits have been paid shall be honored only if the combined wage claimant has repaid any benefits paid or authorizes the new liable State to offset the overpayment.

(i) The Paying State shall issue an overpayment determination and forward a copy, together with an overpayment recovery request and an authorization to offset, with the initial claim to the new liable State.

(ii) The Recovering State (which is the new liable State) shall:

(I) Offset the total amount of any overpayment, resulting from the withdrawal of a Combined Wage claim, prior to the release of any payments to the claimant;

(II) Offset the total amount of any overpayment, resulting from the withdrawal of a Combined Wage Claim prior to honoring a request from any other Participating State under this arrangement;

(III) Provide the claimant with a notice for the amount offset; and,

(IV) Prepare and forward a check representing the amount recovered to the Requesting State as described in (b)(D).

(d) Cross-Program Offset: The Recovering State shall offset benefits payable under a State unemployment compensation program to recover any benefits overpaid under a Federal unemployment compensation program (as described in the Recovering State’s Agreement with the Secretary of Labor) and vice versa, in the same manner as required under subsection (3)(b) and (c) of this section, as appropriate, if the Recovering State and Requesting State have entered into an agreement with the U.S. Secretary of Labor to implement Section 303(g)(2) of the Social Security Act.

Stat. Auth.: ORS 657.610

Stats. Implemented: ORS 657.155 & 657.760

Hist.: ED 12-2001(Temp), f. 10-12-01, cert. ef. 10-14-01 thru 4-7-02; ED 2-2002, f. 3-29-02, cert. ef. 3-31-02; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14

471-031-0151

Failure to File Reports or Pay Tax — Good Cause

(1) As used in ORS 657.457, 657.552, and 657.663 “good cause” will be found to exist when the employer establishes by satisfactory evidence that factors or circumstances beyond the employer’s reasonable control caused the delay in filing the required document or paying the tax due.

(2) In determining “good cause” under section (1) of this rule, the Director or an authorized representative may consider all circumstances, but shall require at a minimum that the employer:

(a) Prior to the date the document or tax was due, gave notice to the Employment Department, when reasonably possible, of the factors or circumstances which ultimately caused the delay;

(b) Filed the required document or paid the tax due within seven days after the date determined by the Director to be the date the factors or circumstances causing the delay ceased to exist; and

(c) Made a diligent effort to remove the cause of the delay and to prevent its recurrence.

(d) Provide an official police report, or other documentation of the criminal act acceptable to the Director or an authorized representative, that was made within 20 days of the incident, or discovery of the incident, if the delay was due to a criminal act by any party.

(3) In applying sections (1) and (2) of this rule, a lack of funds on the part of the employer shall not constitute good cause for failure to pay all taxes when due.

(4) In applying sections (1) and (2) of this rule, failure to notify the Employment Department of an updated mailing address per ORS 657.660(4) shall not constitute good cause for failure to file reports.

(5) The period within which an employer may request a waiver of the penalty or hearing on the denial of a waiver may be extended a reasonable time upon a showing of “good cause” for the late request as defined in OAR 471-040-0010.

Stat. Auth.: ORS 657.610

Stats. Implemented: ORS 657.610, 657.457, 657.552 & 657.663

Hist.: 1DE 2-1984, f. & ef. 9-28-84; ED 15-2008, f. 11-24-08, cert. ef. 12-1-08; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14

471-040-0020

Subpoenas

(1) At the timely request of a party or on the administrative law judge’s own initiative, an administrative law judge may issue a subpoena requiring a person to appear at a scheduled hearing for the purpose of giving testimony, or producing books, records, documents, or other physical evidence.

(2) A party that submits a request for subpoena should show:

(a) The name of the witness and the address where the witness can be served the subpoena;

(b) That the testimony of the person is material; and

(c) That the person will not voluntarily appear.

(3) If the requesting party wishes the witness to produce books, records, documents, or other physical evidence, the party should also show:

(a) The name or a detailed description of the specific books, records, documents, or other physical evidence the witness should bring to the hearing;

(b) That such evidence is material; and

(c) That such evidence is in the possession of the person who will not voluntarily appear and bring such evidence to the hearing.

(4) An administrative law judge may limit the number of subpoenas for witnesses material to the proof of any one issue at the hearing.

(5) Service of the subpoena upon the witness is the responsibility of the party requesting the subpoena.

(6) A witness who attends a hearing pursuant to subpoena issued under this rule is entitled to witness fees and mileage as provided in Rule 55 E. (1), Rules of Civil Procedure, and in ORS 44.415(2) for subpoenaed witnesses. Fees will be paid by check mailed subsequent to the conclusion of the hearing. The witness shall request payment of fees by completion of forms approved by the Employment Department. Payment of fees shall be made promptly upon receipt of the request for payment.

(7) Only witnesses, other than parties, who attend a hearing pursuant to subpoena issued under this rule may be paid or reimbursed by the Employment Department for witness fees and mileage.

(8) For the purposes of ORS 657.295, the amount approved by the Director that counsel or agent representing an individual who is claiming benefits may charge or receive for the services is no more than 25% of an individual’s benefits affected by the administrative decision on a disputed claim and no more than 25% of the maximum benefit amount payable as defined under 657.150(5).

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 657.610

Stats. Implemented: ORS 657.610, 657.155, 657.260, 657.295 & 657.317

Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 153, f. 12-23-77, ef. 1-1-78; 1DE 8-1981, f. & ef. 11-2-81; 1DE 1-1985, f. & ef. 11-18-85; ED 1-1991, f. & cert. ef. 4-1-91; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14


Rule Caption: 2013 Unemployment Insurance Updates per Legislative Session

Adm. Order No.: ED 2-2014

Filed with Sec. of State: 1-15-2014

Certified to be Effective: 2-23-14

Notice Publication Date: 10-1-2013

Rules Adopted: 471-030-0058, 471-030-0083

Rules Amended: 471-030-0036, 471-030-0040, 471-030-0045, 471-030-0052, 471-030-0053, 471-030-0210, 471-031-0151, 471-040-0020

Rules Repealed: 471-030-0078, 471-030-0040(T), 471-030-0045(T), 471-030-0053(T), 471-030-0058(T), 471-030-0052(T)

Subject: Second filing due to missing 10-day Legislative Counsel window on first filing.

   471-030-0036 — Updates to eligibility requirements.

   471-030-0040 — Updates to initial claims, additional claims, and reopened claims.

   471-030-0045 — Updates to continued claims.

   471-030-0052 — Updates to fraud penalty and cancellation of penalty weeks.

   471-030-0053 — Updates to waiving overpayment recovery.

   471-030-0058 — New rule, establishes rules for Treasury Offset Payment program.

   471-030-0078 — Repeals rule relating to offshore workers.

   471-030-0083 — New rule regarding employer non-relief of charges for pattern of not responding.

   471-030-0210 — Updates to electronic notices for interstate reciprocal overpayment recoveries.

   471-031-0151 — Updates to good cause regarding tax filing deadlines.

   471-040-0020 — Updates to permissible fees for representing UI claimants.

Rules Coordinator: Courtney Brooks—(503) 947-1724

471-030-0036

Eligibility Factors

(1) In considering suitable work factors under ORS 657.190 and for purposes of determining eligibility under 657.155(1)(c), the Director may require an individual to actively seek the type of work the individual is most capable of performing due to prior job experience and training except that:

(a) If an individual is unable to secure the individual’s customary type of work after contacting the potential employers in the labor market where benefits are being claimed, the Director may require the individual to seek less desirable but similar work or work of another type which the individual is capable of performing by virtue of experience and training.

(b) If the type of work an individual is most capable of performing does not exist in the labor market where the individual is claiming benefits, the Director may require the individual to seek any work that exists in the labor market for which the individual is suited by virtue of experience and training.

(c) After the individual has contacted the potential employers in the labor market where benefits are being claimed and is still unable to obtain work as described in (1)(a) and (b) of this section, the Director may require the individual to further expand work-seeking activities.

(2) For the purposes of ORS 657.155(1)(c), an individual shall be considered able to work in a particular week only if physically and mentally capable of performing the work he or she actually is seeking during all of the week except:

(a) An occasional and temporary disability for less than half of the week shall not result in a finding that the individual is unable to work for that week; and

(b) An individual with a permanent or long-term “physical or mental impairment” (as defined at 29 CFR 1630.2(h)) which prevents the individual from working full time or during particular shifts shall not be deemed unable to work solely on that basis so long as the individual remains available for some work.

(3) For the purposes of ORS 657.155(1)(c), an individual shall be considered available for work if, at a minimum, he or she is:

(a) Willing to work full time, part time, and accept temporary work opportunities, during all of the usual hours and days of the week customary for the work being sought, unless such part time or temporary opportunities would substantially interfere with return to the individual’s regular employment; and

(b) Capable of accepting and reporting for any suitable work opportunities within the labor market in which work is being sought, including temporary and part time opportunities; and

(c) Not imposing conditions which substantially reduce the individual’s opportunities to return to work at the earliest possible time; and

(d) Physically present in the normal labor market area as defined by section (6) of this rule, every day of the week, unless:

(A) The individual is actively seeking work outside his or her normal labor market area; or

(B) The individual is infrequently absent from the normal labor market area for reasons unrelated to work search, for less than half of the week, and no opportunity to work or referral to work was missed by such absence.

(e) However, an individual with a permanent or long-term physical or mental impairment (as defined at 29 CFR 1630.2(h)) which prevents the individual from working full time or during particular shifts shall not be deemed unavailable for work solely on that basis so long as the individual remains available for some work.

(f) For the purposes of ORS 657.155(1)(c), an individual is not available for work in any week claimed if:

(A) The individual has an opportunity to perform suitable work during the week and fails to accept or report for such work due to illness, injury or other temporary physical or mental incapacity.

(B) During the week, the individual is incarcerated during any days or hours customary for the type of work the individual is seeking.

(i) “Incarcerated” means in custody at a city, county, state, or federal law enforcement or correctional facility to include any “arrest” as defined in ORS 133.005 or a similar law in another state or jurisdiction.

(ii) When an individual is in an alternative sentencing facility operated pursuant to a community corrections plan that individual will not be considered unavailable for work solely because of their non-traditional custody. Alternative sentencing is defined by the jurisdiction responsible for supervision of the suspect or offender.

(iii) “Incarcerated” does not include a “stop” as authorized under ORS 131.605 to 131.625.

(iv) “Incarcerated” does not mean being involved in questioning by peace officers as part of an investigation where the individual is free to leave and not charged with a crime.

(g) An individual will be considered not available for work if he or she fails or refuses to seek the type of work required by the Director pursuant to section (1) of this rule.

(h) Providing the individual is otherwise eligible for benefits pursuant to OAR 471-030-0036(3)(a) through (g), a person who has been found to be qualified for benefits under the provisions of ORS 657.176(2)(f) or (g) or 657.176(9)(b)(A) shall be considered available for work only during weeks in which the individual is enrolled in and participating in a recognized drug or alcohol treatment program if such participation was a condition in the determination to allow benefits. This provision does not apply if the individual has satisfactorily completed the course of treatment in accordance with the terms and conditions of the recognized treatment program.

(A) An individual is participating when engaged in a course of treatment through a recognized drug or alcohol rehabilitation program;

(B) A recognized drug or alcohol rehabilitation program is a program authorized and licensed under the provisions of OAR chapter 415.

(i) An individual is not available for work in any week claimed under ORS 657.155 if the individual resides or spends the major portion of the week:

(A) In Canada unless the individual is authorized to work in both the United States and Canada;

(B) In a country not included in the Compact of Free Association with the United States of America; or

(C) outside of the United States, District of Columbia or any territory or political division that is directly overseen by the United States federal government; except,

(i) If the individual is the spouse or domestic partner of an individual stationed at a military base or embassy located outside the United States;

(ii) Job opportunities exist on the military base or embassy for family members of those stationed there;

(iii) The individual lives within a reasonable commuting distance to job opportunities at the military base or embassy; and

(iv) The individual is willing to accept the conditions and terms of the available employment provided they are not inconsistent with ORS 657.195.

(4) Notwithstanding the provisions of OAR 471-030-0036(3), an individual who is the parent, step-parent, guardian or other court/legally-appointed caretaker of a child under 13 years of age or of a child with special needs under the age of 18 who requires a level of care over and above the norm for his or her age, who is not willing to or capable of working a particular shift because of a lack of care for that child acceptable to the individual shall be considered available for work if:

(a) The work the individual is seeking is customarily performed during other shifts in the individual’s normal labor market area as defined by OAR 471-030-0036(6); and

(b) The individual is willing to and capable of working during such shift(s).

(5)(a) For purposes of ORS 657.155(1)(c) an individual is actively seeking work when doing what an ordinary and reasonable person would do to return to work at the earliest opportunity. Unless otherwise directed by the director or an authorized representative of the employment department, an individual who is not on temporary layoff as described in subsection (b), is not a union member as described in subsection (d), nor is filing a continued claim for the first week of an initial or additional claim as described in subsection (e), shall be required to conduct at least five work seeking activities per week, with at least two of those being direct contact with an employer who might hire the individual.

(A) Work seeking activities include but are not limited to registering for job placement services with the Employment Department, attending job placement meetings sponsored by the Employment Department, participating in a job club or networking group dedicated to job placement, updating a resume, reviewing the newspaper or job placement web sites without responding to a posted job opening, and making direct contact with an employer.

(B) Direct contact with an employer means making contact with an employer in person, by phone, mail, or electronically to inquire about a job opening or applying for job openings in the manner required by the hiring employer.

(b) For an individual on temporary layoff of four weeks or less with the individual’s regular employer:

(A) If the individual had, as of the layoff date, been given a date to return to full-time work or work for which remuneration is paid or payable that equals or exceeds the individual’s weekly benefit amount, such individual is actively seeking work by remaining in contact with and being capable of accepting and reporting for any suitable work with that employer for a period of up to four calendar weeks following the end of the week in which the temporary layoff occurred. The individual no longer meets the requirements of this subsection if four calendar weeks have passed following the week in which the temporary layoff occurred, therefore the individual must seek work consistent with subsection (a) of this section in addition to the individual’s regular employer.

(B) The individual does not meet the requirements of this subsection if the individual had not, as of the layoff date, been given a date to return to full-time work or work for which remuneration is paid or payable that equals or exceeds the individual’s weekly benefit amount.

(c) For an individual on temporary layoff of more than four weeks with the individual’s regular employer: such individual must immediately seek work consistent with the requirements of subsection (a) of this section

(d) For an individual who is a member in good standing of a union that does not allow members to seek non-union work, such individual is actively seeking work by remaining in contact with that union and being capable of accepting and reporting for work when dispatched by that union.

(e) For an individual who is filing a continued claim for the first week of an initial or additional claim:

(A) If the individual worked less than full time and remuneration paid or payable to the individual for services performed during the week is less than the individual’s weekly benefit amount, each day the individual worked for the employer shall be considered a direct employer contact.

(B) An individual does not meet the requirements of this subsection if the individual performed no work for an employer during the first week of an initial or additional claim; therefore the individual must seek work consistent with subsection (a) of this section

(f) In determining whether to modify the requirements in this section for an individual the Employment Department may consider among other factors, length of unemployment, economic conditions in the individual’s labor market and prospective job openings, weather conditions affecting occupations or industries, seasonal aspects of the individual’s regular occupation, expected date of return to work in regular occupation, seniority status of individual, registration with a union hiring hall and normal practices for obtaining the type of work which the individual is seeking pursuant to section (1) of this rule. The Department shall provide a written copy of the work search requirements to the individual if the individual’s work search requirements are modified.

(6)(a) An individual’s normal labor market shall be that geographic area surrounding the individual’s permanent residence within which employees in similar circumstances are generally willing to commute to seek and accept the same type of work at a comparable wage. The geographic area shall be defined by employees of the adjudicating Employment Department office, based on criteria set forth in this section;

(b) When an individual seeks work through a union hiring hall, the individual’s normal labor market area for the work sought is the normal referral jurisdiction of the union, as indicated by the applicable contract.

(7) Nothing in this rule shall prohibit an individual who is a citizen, permanent legal resident, or otherwise legally authorized to work in the United States from seeking work in other labor market areas in any state or country.

Stat. Auth.: ORS 657.610 & 657.155

Stats. Implemented: ORS 657.155,657.190, 657.195 & 657.260

Hist.: 1DE 151, f. 9-28-77, ef. 10-4-77; 1DE 4-1979(Temp), f. & ef. 7-5-79; 1DE 5-1979, f. & ef. 8-27-79; 1DE 1-1982, f. & ef. 6-30-82; ED 2-1992, f. & cert. ef. 6-29-92; ED 5-1994(Temp), f. 10-13-94, cert. ef. 10-16-94; ED 2-1997, f. 10-24-97, cert. ef. 11-3-97; ED 5-2003, f. 4-11-03, cert. ef. 4-13-03; ED 8-2004, f. 12-17-04, cert. ef. 12-19-04; ED 1-2006. f. 1-5-06, cert. ef. 1-8-06; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14; ED 2-2014, f. 1-15-14, cert. ef. 2-23-14

471-030-0040

Initial, Additional, and Reopened Claims

(1) As used in these rules, unless the context requires otherwise:

(a) “Claimant” is an individual who has filed an initial, additional, or reopened claim for unemployment insurance purposes within a benefit year or other eligibility period;

(b) An “initial claim” is a new claim that is a certification by a claimant completed as required by OAR 471-030-0025 to establish a benefit year or other eligibility period;

(c) “Additional claim” is a claim certification by a claimant completed as required by OAR 471-030-0025 that restarts a claim during an existing benefit year or other eligibility period and certifies to the end of a period of employment;

(d) “Reopened claim” is a certification by a claimant completed as required by OAR 471-030-0025 that restarts a claim during an existing benefit year or other eligibility period and certifies that there was no employment in any week since last reporting on this claim;

(e) “Backdating” occurs when an authorized representative of the Employment Department corrects, adjusts, resets or otherwise changes the effective date of an initial, additional or reopened claim to reflect filing in a prior week. Backdating may occur based upon evidence of the individual’s documented contact on the prior date with the Employment Department or with any other state Workforce agency, or as otherwise provided in this rule.

(2) For the purposes of filing an initial, additional, or reopened claim:

(a) When delivered in person to any Employment Department office in the state of Oregon, the date of filing shall be the date of delivery, as evidenced by the receipt date stamped or written by the public employee who receives the document;

(b) When filed by mail, the date of filing shall be the date of the postmark affixed by the United States Postal Service. In the absence of a postmarked date, the date of filing shall be the most probable date of mailing as determined by the Employment Department;

(c) When filed by fax, the date of filing shall be the encoded date on the fax document unless such date is absent, illegible, improbable or challenged, in which case the fax receipt date, if available, shall be the date of filing. If a filing date cannot otherwise be determined, the filing date shall be the most probable date of faxing as determined by the Employment Department;

(d) When filed by Internet, the date of filing shall be the initial date of transmission of the online claim; or

(e) When filed by telephone, the date of filing shall be the date recorded in the completed telephone initial claim record of the agency system or by an employee completing the filing of the claim record.

(f) An incomplete certification must be completed and returned within seven business days from the date of notification that the original was incomplete to preserve the original date of filing.

(3) An initial, additional, or reopened claim must be filed prior to or during the first week or series of weeks for which benefits, waiting week credit, or noncompensable credit is claimed and prior to or during the first week of any subsequent series thereafter. An initial claim is effective the Sunday of the calendar week in which it is filed. An authorized representative of the Employment Department will backdate an additional or reopened claim to the calendar week immediately preceding the week in which the request to backdate was made when a claimant requests backdating of the additional or reopened claim.

(4) The provisions of this section do not apply to an individual claiming benefits as a “partially unemployed individual,” as defined in OAR 471-030-0060.

Stat. Auth.: ORS 657.610 & 657.155

Stats. Implemented: ORS 657.155 & 657.260

Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 152, f. 9-28-77, ef. 10-4-77; 1DE 1-1982, f. & ef. 6-30-82; ED 1-1987, f. & ef. 1-12-87; ED 14-2003, f. 12-12-03 cert. ef. 12-14-03; ED 2-2013(Temp), f. 8-22-13, cert. ef. 9-1-13 thru 2-26-14; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14; ED 2-2014, f. 1-15-14, cert. ef. 2-23-14

471-030-0045

Continued Claims

(1) As used in these rules, unless the context requires otherwise:

(a) “Continued Claim” means an application that certifies to the claimant’s completion of one or more weeks of unemployment and to the claimant’s status during these weeks. The certification may request benefits, waiting week credit, or non-compensable credit for such week or weeks. A continued claim must follow the first effective week of an initial, additional or reopen claim, or the claimant’s continued claim for the preceding week;

(b) A “non-compensable credit week” is a week of unemployment for which benefits [shall] will not be allowed but which may qualify as a week allowed toward satisfying a disqualification as provided in ORS 657.215.

(2) A claimant, in order to obtain benefits, waiting week credit, or non-compensable credit for a week of unemployment, must file a continued claim for the week by any method approved by the Director.

(3) As directed by the Director, a continued claim must be filed:

(a) In person at any Employment Department office in the state of Oregon. When delivered in person to any Employment Department office in the state of Oregon, the date of filing shall be the date of delivery, as evidenced by the receipt date stamped or written by the public employee who receives the document;

(b) By United States mail. When filed by mail, the date of filing shall be the date of the postmark affixed by the United States Postal Service. In the absence of a postmarked date, the date of filing shall be the most probable date of mailing as determined by the Employment Department;

(c) By fax. When filed by fax, the date of filing shall be the encoded date on the fax document unless such date is absent, illegible, improbable or challenged, in which case the fax receipt date, if available, shall be the date of filing. If a filing date cannot otherwise be determined, the filing date shall be the most probable date of faxing as determined by the Employment Department;

(d) By Internet. When filed on line, the date of filing shall be the initial date of transmission of the on line continued claim; or

(e) By telephone. When filed by telephone, the date of filing shall be the date marked, stamped, or imprinted on the document by the agency system that records the oral request or by the employee accepting the continued claim.

(4) A continued claim must be filed no later than seven days following the end of the week for which benefits, waiting week credit, or noncompensable credit, or any combination of the foregoing is claimed, unless:

(a) The continued claim is for the first effective week of the benefit year, in which case the week must be claimed no later than 13 days following the end of the week for which waiting week credit is claimed, or

(b) The claimant routinely files weekly claims by submitting a weekly paper certification forms, in which case the week is timely if it is filed to the Employment Department no later than seven days, as per sections (3)(a)–(c) of this rule, after the Employment Department originally sent the paper certification form to the claimant.

(5) The Director may, with respect to individual claimants or groups of claimants, direct that continued claims be filed on any reporting schedule appropriate to existing facilities and conditions.

(6) The provisions of this rule do not apply to an individual claiming benefits as a “partially unemployed individual,” as defined in OAR 471-030-0060.

Stat. Auth.: ORS 657.610 & 657.155

Stats. Implemented: ORS 657.155 & 657.260

Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 152, f. 9-28-77, ef. 10-4-77; 1DE 3-1981, f. & ef. 2-16-81; 1DE 1-1984, f. & ef. 3-21-84; ED 4-1993, f. & cert. ef. 11-22-93; ED 4-1994, f. & cert. ef. 9-2-94; ED 14-2003, f. 12-12-03 cert. ef. 12-14-03; ED 2-2013(Temp), f. 8-22-13, cert. ef. 9-1-13 thru 2-26-14; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14; ED 2-2014, f. 1-15-14, cert. ef. 2-23-14

471-030-0052

Misrepresentation Disqualification

(1) An authorized representative of the Employment Department shall determine the number of weeks of disqualification under ORS 657.215 according to the following criteria:

(a) When the disqualification is imposed because the individual failed to accurately report work and/or earnings, the number of weeks of disqualification shall be determined by dividing the total amount of benefits overpaid to the individual for the disqualifying act(s), by the maximum Oregon weekly benefit amount in effect during the first effective week of the initial claim in effect at the time of the individual’s disqualifying act(s), rounding off to the nearest two decimal places, multiplying the result by four rounding it up to the nearest whole number.

(b) When the disqualification is imposed because the disqualifying act(s) under ORS 657.215 relates to the provisions of 657.176, the number of weeks of disqualification shall be the number of weeks calculated in the same manner as under subsection (a) above, or four weeks, whichever is greater.

(c) When the disqualification is imposed because the disqualifying act(s) relates to the provisions of ORS 657.155 (other than work and/or earnings), the number of weeks of disqualification shall be the number of weeks calculated in the same manner as under subsection (a) above, or the number of weeks in which a disqualifying act(s) occurred, whichever is greater.

(d) When the disqualification is imposed because the disqualifying act(s) under ORS 657.215 relates to the provisions of 657.176 and a failure to accurately report work and/or earnings, the number of weeks of disqualification shall be the number of weeks calculated in the manner set forth in subsection (a) plus four weeks.

(e) When the disqualification is imposed because the disqualifying act(s) relates to the provisions of ORS 657.155 (other than work and/or earnings) and a failure to accurately report work and/or earnings, the number of weeks of disqualification shall be the number of weeks calculated in the manner set forth in subsection (a) plus the number of weeks in which a disqualifying act(s) occurred relating to the provisions of 657.155 (other than work and earnings).

(2) The number of weeks of disqualification assessed under section (1) of this rule shall be doubled, but not to exceed 52 weeks, if the individual has one previous disqualification under ORS 657.215, and that prior disqualification determination has become final.

(3) Notwithstanding sections (1) and (2) of this rule, the number of weeks of disqualification under ORS 657.215 shall be 52 weeks if:

(a) The disqualification under ORS 657.215 is because the individual committed forgery; or

(b) The individual has two previous disqualifications under ORS 657.215, and those prior two disqualification determinations have become final.

(4) Notwithstanding sections (1), (2) and (3), an authorized representative of the Employment Department may determine the number of weeks of disqualification according to the circumstances of the individual case, but not to exceed 52 weeks.

(5) All disqualifications imposed under ORS 657.215 shall be served consecutively.

(6) Any week of disqualification imposed under ORS 657.215 may be satisfied by meeting all of the eligibility requirements of Chapter 657, other than 657.155(1)(e).

(7) The department will review the number of occurrences of misrepresentation when applying the penalty as described in ORS 657.310(2). An occurrence shall be counted each time an individual willfully makes a false statement or representation, or willfully fails to report a material fact to obtain benefits. The department shall use the date the individual failed to report a material fact or willfully made a false statement as the date of the occurrence. For an individual subject to disqualification by administrative action under 657.215, the penalty will be:

(a) For the first or second occurrence within 5 years of the occurrence for which a penalty is being assessed, 15 percent of the total amount of benefits the individual received but to which the individual was not entitled.

(b) For the third or fourth occurrence within 5 years of the occurrence for which a penalty is being assessed, 20 percent of the total amount of benefits the individual received but to which the individual was not entitled.

(c) For the fifth or sixth occurrence within 5 years of the occurrence for which a penalty is being assessed, 25 percent of the total amount of benefits the individual received but to which the individual was not entitled.

(d) For the seventh or greater occurrence within 5 years of the occurrence for which a penalty is being assessed, 30 percent of the total amount of benefits the individual received but to which the individual was not entitled.

(e) In cases of forgery or identity theft, 30 percent of the amount of benefits the individual received but to which the individual was not entitled.

(8)(a) Under ORS 657.215, the Director or an authorized representative of the Employment Department may determine it is proper and equitable to cancel the disqualification if:

(A) All benefits, interest, penalties, fees, and court costs have been paid in full;

(B) Three or more years have passed since the decision assessing the number of weeks of disqualification was issued; and

(C) The department has issued only one decision assessing weeks of disqualification to the individual within the last 10 years from the date of the request to cancel.

(b) For the purposes of the section (c) of this rule, an “occurrence” is each time an individual willfully makes a false statement or representation, or willfully fails to report a material fact to obtain benefits within the same willful misrepresentation decision.

(c) The Director or an authorized representative of the Employment Department shall determine the amount of weeks applicable for cancellation under ORS 657.215 according to the following criteria:

(A) The individual has satisfied the requirements of subsection (a);

(B) When the individual has committed one occurrence of violating ORS 657.215 within the same willful misrepresentation decision, the director may cancel the remaining weeks of disqualification in whole.

(C) When the individual has committed two occurrences of violating ORS 657.215 within the same willful misrepresentation decision, the director may cancel half the weeks of disqualification.

(D) When the individual has committed three or more occurrences of violating ORS 657.215 within the same willful misrepresentation decision or the disqualification under 657.215 is because the individual committed forgery, weeks of disqualification shall not be cancelled.

(d) Weeks of disqualification served prior to the request for cancellation shall not be cancelled.

Stat. Auth.: ORS 657.610 & 657.155

Stats. Implemented: ORS 657.155, 657.215 & 657.310

Hist.: 1DE 151, f. 9-28-77, ef. 10-4-77; ED 10-2003, f. 7-25-03, cert. ef. 7-27-03; ED 3-2008(Temp), f. & cert. ef. 2-15-08 thru 8-13-08; ED 8-2008, f. 5-20-08, cert. ef. 7-1-08; ED 3-2013(Temp), f. 9-10-13, cert. ef. 10-1-13 thru 3-28-14; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14; ED 2-2014, f. 1-15-14, cert. ef. 2-23-14

471-030-0053

Waiving Recovery of Overpayments

(1) This rule addresses waiving recovery of overpayments pursuant to ORS 657.317.

(2) Recovering overpaid benefits is against equity and good conscience if the person requesting a waiver has no means to repay the benefits and has total allowable household expenses that equal or exceed 90% of the total household income less unemployment benefits. The Employment Department will use the IRS Collection Financial Standards to determine maximum allowable household expenses. The Employment Department may allow expenses higher than those provided for in the IRS Collection Financial standards if the person requesting a waiver provides documents showing that using those IRS Collection Financial Standards would leave him or her an inadequate means of providing for basic living expenses.

(3) If a waiver is granted, the Department will stop collection activity of the overpaid benefits that are waived. The Department will give written notice of any waivers that are granted, indicating the amount of the overpaid benefits for which the waiver is granted, and the time period of the waiver.

(4) The amount of overpaid benefits that are waived will be removed from the balance of remaining benefits that the claimant has remaining on the claim during the duration of the waiver of recovery of benefits.

(5) Waivers are effective the Sunday of the week in which the request for waiver was filed with the Employment Department. The date of the post mark from the United States Postal Service, a date stamp from an Employment Department office, or an embedded fax date, whichever is earliest, will be used to determine the date of filing.

(6) If a request for waiver of recovery is denied, the claimant may submit another request for waiver of recovery if his or her situation changes significantly enough to establish that recovery of the benefits would be against equity and good conscience. No such subsequent request will be granted unless the claimant explains the significant change in financial situation in writing and provides supporting documentation.

(7) If a waiver is granted but the Employment Department then determines a hardship no longer exists, or that the person who received the waiver gave inaccurate or incomplete information in the request for waiver, the Employment Department may end the waiver.

(8) If a request for a waiver of recovery is denied or if the Employment Department determines a hardship no longer exists and ends the waiver of recovery, the claimant will receive an administrative decision as defined in OAR 471-030-0039.

(9) Overpaid benefits that have been recovered prior to the filing of a waiver request will not be waived.

(10) If a person is paid more than once for the same week(s), only the amount in excess of the final entitlement is eligible to be waived.

(11) In applying ORS 657.317(4), a waiver will not be granted if the overpayment is a result of willful misrepresentation or fraud as established in ORS 657.215

(12) Overpayments caused by the negotiation of an original and a replacement check that were issued for the same period pursuant to OAR 471-030-0049 will not be waived.

(13) The determination to waive recovery of overpayments under ORS 657.317 and this rule shall be made by employees authorized by the Director.

Stat. Auth.: ORS 657.610

Stats. Implemented: ORS 657.267, 657.268, 657.315 & 657.317

Hist.: ED 2-1995, f. 8-29-95, cert. ef. 9-3-95; ED 4-2011(Temp), f. & cert. ef. 6-29-11 thru 12-15-11; ED 11-2011, f. & cert. ef. 12-5-11; ED 2-2013(Temp), f. 8-22-13, cert. ef. 9-1-13 thru 2-26-14; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14; ED 2-2014, f. 1-15-14, cert. ef. 2-23-14

471-030-0058

Offset of Unemployment Compensation Debt Through U.S. Treasury Offset Program

(1) The Oregon Employment Department may submit liquidated unemployment insurance overpayments for offset against federal tax refunds through the “Treasury Offset Program” under 31 USC 3716(h) and 31 CFR 285.6. For purposes of this rule, liquidated means legally enforceable because:

(a) The liability is assessed by the department;

(b) The department has made written demand for payment of the liability;

(c) The claimant is not in bankruptcy; and

(d) All relevant appeal periods for contesting the liability have expired.

(2) Notice of intent to offset. Before submitting an unemployment insurance overpayment to Financial Management Service, U.S. Treasury for offset against a federal refund, the Oregon Employment Department must send written notice of intent to offset to the claimant by mail.

(3) Disagreement procedures. If a claimant disagrees with the notice of intent to offset and wants reconsideration, the claimant must submit a letter of disagreement within 60 days of the date shown on the notice of intent to offset. The claimant must provide, and the department will limit consideration to, evidence that the overpayment scheduled for offset is not:

(a) Past due; or

(b) Legally enforceable.

(4) If the claimant claims that the debt is not legally enforceable, the department will consider the merits of such a claim unless the issue has already been finally adjudicated by the Office of Administrative Hearings or Employment Appeals Board in a proceeding to which the department is a party.

(5) Review of disagreement. For each letter of disagreement provided by the claimant, the department will:

(a) Review evidence provided by the claimant, and

(b) Remove claimant’s name from the federal refund offset list for this debt if evidence supports the claimant’s position that the debt is not past due or legally enforceable.

Stat. Auth.: ORS 657.610

Stats. Implemented: ORS 657.610, 657.155, 657.260 & SB 259 2013

Hist.: ED 2-2013(Temp), f. 8-22-13, cert. ef. 9-1-13 thru 2-26-14; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14; ED 2-2014, f. 1-15-14, cert. ef. 2-23-14

471-030-0083

Employer Penalties

For the purposes of ORS 657.471:

(1) A request for information means when the Department asks an employer or its representative to provide the Department with information regarding Unemployment Insurance by:

(a) A written notice of claim filing as provided in ORS 657.265, where an individual was discharged, suspended, or voluntarily left work;

(b) Any communication made by mail, telephone, or electronically, to an employer or agent of the employer relating to a notice of claim filing as provided in ORS 657.265 regarding an individual’s discharge, suspension, or voluntary leaving work;

(c) Any communication made by mail, telephone, or electronically, to an employer or agent of the employer in order for the department to make a determination under ORS 657.215.

(2) An employer or agent of the employer has failed to respond timely when they do not respond within the time frame provided by the department to a request for information.

(3) An employer or agent of the employer has failed to respond adequately when:

(a) The employer or agent of the employer does not respond to a request for information; or

(b) The employer or agent of the employer responds to a request for information but provides incomplete or inaccurate information to the questions asked.

(4) An employer or agent of the employer has established a pattern when the employer or agent of the employer has failed to respond timely or adequately to the greater of:

(a) More than (2%) of the requests for information; or,

(b) More than (2) requests for information.

(5) For the purposes of this rule, the department will determine if the employer or agent of the employer has established a pattern of failing to respond timely or accurately to requests for information by reviewing requests for information during the previous twelve months ending the month prior to which the decision creating the overpayment of unemployment insurance benefits is issued.

Stat. Auth.: ORS 657.610

Stats. Implemented: 657.610, 657.155, 657.260 & 657.471

Hist.: ED 1-2014, f. 1-3-14, cert. ef. 2-23-14; ED 2-2014, f. 1-15-14, cert. ef. 2-23-14

471-030-0210

Interstate Reciprocal Overpayment Recovery Arrangement

(1) The following rules shall govern the Oregon Employment Department in its administrative cooperation with other States adopting similar regulations for the recovery of overpayments.

(2) Definitions: As used in these rules unless the context clearly requires otherwise:

(a) “State” includes the District of Columbia, Puerto Rico, and the Virgin Islands.

(b) “Offset” means the withholding of an amount against benefits which would otherwise be payable for a compensable week of unemployment.

(c) “Overpayment” means an improper payment of benefits, from a State or Federal unemployment compensation fund that has been determined recoverable under the Requesting State’s law.

(d) “Participating State” means a State which has subscribed to the Interstate Reciprocal Overpayment Recovery Arrangement.

(e) “Paying State” means the State under whose law a claim for unemployment benefits has been established on the basis of combining wages and employment covered in more than one State.

(f) “Recovering State” means the state that has received a request for assistance from a “Requesting State”.

(g) “Requesting State” means the State that has issued a final determination of overpayment and is requesting another State to assist it in recovering the outstanding balance from the overpaid individual.

(h) “Transferring State” means a State in which a Combined Wage claimant had covered employment and wages in the base period of a paying State, and which transfers such employment and wages to the paying State for its use in determining the benefit rights of such claimant under its law.

(i) “Liable State” means any state against which an individual files, through another state, a claim for benefits.

(3) Recovery of State or Federal Benefit Overpayments:

(a) Duties of the Requesting State. The requesting State shall:

(A) Send the recovering State a written request or a request using an approved electronic application for overpayment recovery assistance which includes:

(i) Certification that the overpayment is legally collectable under the requesting State’s law;

(ii) Certification that the determination is final and that any rights to postponement of recoupment have been exhausted or have expired;

(iii) A statement as to whether the State is participating in cross-program offset by agreement with the U.S. Secretary of Labor; and,

(iv) A copy of the initial overpayment determination and a statement of the outstanding balance.

(B) Send notice of this request to the claimant; and

(C) Send to the recovering State a new outstanding overpayment balance whenever the requesting State receives any amount of repayment from a source other than the recovering State (e.g., interception of tax refund, etc.).

(b) Duties of Recovering State. The Recovering State shall:

(A) Issue an overpayment recovery determination to the claimant which includes at a minimum:

(i) The statutory authority for the offset;

(ii) The name of the State requesting recoupment;

(iii) The date of the original overpayment determination;

(iv) Type of overpayment (fraud or nonfraud);

(v) Program type (UI, UCFE, UCX, TRA, etc.)

(vi) Total amount to be offset;

(vii) The amount to be offset weekly;

(viii) The right to request redetermination and appeal of the determination to recover the overpayment by offset.

(B) Offset benefits payable for each week claimed in the amount determined under State law; and

(C) Provide the claimant with a notice of the amount offset; and,

(D) Prepare and forward, no less than once a month, a payment representing the amount recovered made payable to the requesting State, except as provided in section (c) below.

(E) Retain a record of the overpayment balance in its files no later than the exhaustion of benefits, end of the benefit year, exhaustion or end of an additional or extended benefits period, or other extensions of benefits, whichever is later.

(F) The Recovering State shall not redetermine the original overpayment determination.

(c) Combined Wage Claims. When processing combined wage claims, the following shall apply:

(A) Recovery of Outstanding Overpayment in Transferring State. The paying State shall:

(i) Offset any outstanding overpayment in a Transferring State(s) prior to honoring a request from any other “Participating State” under this Arrangement.

(ii) Credit the deductions against the Statement Of Benefits Paid To Combined Wage Claimants, Form IB-6 or forward a check to the Transferring State as described in (b)(D).

(B) Withdrawal of Combined Wage Claim After Benefits Have Been Paid. Withdrawal of a Combined Wage Claim after benefits have been paid shall be honored only if the combined wage claimant has repaid any benefits paid or authorizes the new liable State to offset the overpayment.

(i) The Paying State shall issue an overpayment determination and forward a copy, together with an overpayment recovery request and an authorization to offset, with the initial claim to the new liable State.

(ii) The Recovering State (which is the new liable State) shall:

(I) Offset the total amount of any overpayment, resulting from the withdrawal of a Combined Wage claim, prior to the release of any payments to the claimant;

(II) Offset the total amount of any overpayment, resulting from the withdrawal of a Combined Wage Claim prior to honoring a request from any other Participating State under this arrangement;

(III) Provide the claimant with a notice for the amount offset; and,

(IV) Prepare and forward a check representing the amount recovered to the Requesting State as described in (b)(D).

(d) Cross-Program Offset: The Recovering State shall offset benefits payable under a State unemployment compensation program to recover any benefits overpaid under a Federal unemployment compensation program (as described in the Recovering State’s Agreement with the Secretary of Labor) and vice versa, in the same manner as required under subsection (3)(b) and (c) of this Section, as appropriate, if the Recovering State and Requesting State have entered into an agreement with the U.S. Secretary of Labor to implement Section 303(g)(2) of the Social Security Act.

Stat. Auth.: ORS 657.610

Stats. Implemented: ORS 657.155 & 657.760

Hist.: ED 12-2001(Temp), f. 10-12-01, cert. ef. 10-14-01 thru 4-7-02; ED 2-2002, f. 3-29-02, cert. ef. 3-31-02; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14; ED 2-2014, f. 1-15-14, cert. ef. 2-23-14

471-031-0151

Failure to File Reports or Pay Tax — Good Cause

(1) As used in ORS 657.457, 657.552, and 657.663 “good cause” will be found to exist when the employer establishes by satisfactory evidence that factors or circumstances beyond the employer’s reasonable control caused the delay in filing the required document or paying the tax due.

(2) In determining “good cause” under section (1) of this rule, the Director or an authorized representative may consider all circumstances, but shall require at a minimum that the employer:

(a) Prior to the date the document or tax was due, gave notice to the Employment Department, when reasonably possible, of the factors or circumstances which ultimately caused the delay;

(b) Filed the required document or paid the tax due within seven days after the date determined by the Director to be the date the factors or circumstances causing the delay ceased to exist; and

(c) Made a diligent effort to remove the cause of the delay and to prevent its recurrence.

(d) Provide an official police report, or other documentation of the criminal act acceptable to the Director or an authorized representative, that was made within 20 days of the incident, or discovery of the incident, if the delay was due to a criminal act by any party.

(3) In applying sections (1) and (2) of this rule, a lack of funds on the part of the employer shall not constitute good cause for failure to pay all taxes when due.

(4) In applying sections (1) and (2) of this rule, failure to notify the Employment Department of an updated mailing address per ORS 657.660(4) shall not constitute good cause for failure to file reports.

(5) The period within which an employer may request a waiver of the penalty or hearing on the denial of a waiver may be extended a reasonable time upon a showing of “good cause” for the late request as defined in OAR 471-040-0010.

Stat. Auth.: ORS 657.610

Stats. Implemented: ORS 657.610, 657.457, 657.552 & 657.663

Hist.: 1DE 2-1984, f. & ef. 9-28-84; ED 15-2008, f. 11-24-08, cert. ef. 12-1-08; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14; ED 2-2014, f. 1-15-14, cert. ef. 2-23-14

471-040-0020

Subpoenas

(1) At the timely request of a party or on the administrative law judge’s own initiative, an administrative law judge may issue a subpoena requiring a person to appear at a scheduled hearing for the purpose of giving testimony, or producing books, records, documents, or other physical evidence.

(2) A party that submits a request for subpoena should show:

(a) The name of the witness and the address where the witness can be served the subpoena;

(b) That the testimony of the person is material; and

(c) That the person will not voluntarily appear.

(3) If the requesting party wishes the witness to produce books, records, documents, or other physical evidence, the party should also show:

(a) The name or a detailed description of the specific books, records, documents, or other physical evidence the witness should bring to the hearing;

(b) That such evidence is material; and

(c) That such evidence is in the possession of the person who will not voluntarily appear and bring such evidence to the hearing.

(4) An administrative law judge may limit the number of subpoenas for witnesses material to the proof of any one issue at the hearing.

(5) Service of the subpoena upon the witness is the responsibility of the party requesting the subpoena.

(6) A witness who attends a hearing pursuant to subpoena issued under this rule is entitled to witness fees and mileage as provided in Rule 55 E. (1), Rules of Civil Procedure, and in ORS 44.415(2) for subpoenaed witnesses. Fees will be paid by check mailed subsequent to the conclusion of the hearing. The witness shall request payment of fees by completion of forms approved by the Employment Department. Payment of fees shall be made promptly upon receipt of the request for payment.

(7) Only witnesses, other than parties, who attend a hearing pursuant to subpoena issued under this rule may be paid or reimbursed by the Employment Department for witness fees and mileage.

(8) For the purposes of ORS 657.295, the amount approved by the Director that counsel or agent representing an individual who is claiming benefits may charge or receive for the services is no more than 25% of an individual’s benefits affected by the administrative decision on a disputed claim and no more than 25% of the maximum benefit amount payable as defined under 657.150(5).

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 657.610

Stats. Implemented: ORS 657.610, 657.155, 657.260, 657.295 & 657.317

Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 153, f. 12-23-77, ef. 1-1-78; 1DE 8-1981, f. & ef. 11-2-81; 1DE 1-1985, f. & ef. 11-18-85; ED 1-1991, f. & cert. ef. 4-1-91; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14; ED 2-2014, f. 1-15-14, cert. ef. 2-23-14

Notes
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