Oregon Bulletin
Rule
Caption: Defines “against equity and good
conscience”.
Adm.
Order No.: ED 4-2011(Temp)
Filed with Sec. of
State: 6-29-2011
Certified to be
Effective: 6-29-11 thru 12-15-11
Notice Publication
Date:
Rules Amended: 471-030-0053
Subject: Senate Bill 725 allows for benefits overpaid under ORS
657.315 to be waived if recovery is “against equity and good conscience”. The
rule change defines “against equity and good conscience” by taking into account
the individual’s financial ability to repay the overpaid benefits.
The proposed
change makes additional plain language and consistency updates. It removes the
definition of ‘Recovery’ which is defined in statute. It also replaces in the
text of the rule the Manager of Benefits with the Director as the one who
authorizes employees to waive overpayments under ORS 657.317. This change is
consistent with other rules in this chapter.
Rules Coordinator: Courtney Brooks—(503) 947-1724
471-030-0053
Waiver of Overpayments
(1) Purpose: This rule establishes policy to be used
when waiving overpayments pursuant to ORS 657.317.
(2) Definitions: For purposes of ORS 657.317:
(a) “Establishment” means the issuance of an
administrative decision which would result in an overpayment under ORS 657.310
or ORS 657.315.
(b) “Amount of the overpayment” means the accumulated
amount of potentially overpaid benefits in a single benefit year resulting from
the application of ORS 657.150(6) and/or ORS 657.150(7).
(c) “Against equity and good conscience” means that
recovery of the overpaid benefits would cause a financial hardship on the
individual.
(3) In applying ORS 657.317(2):
(a) An authorized representative of the Employment
Department shall determine that a financial hardship exists when the total
household expenses equal or exceed 90% of the total household income less
unemployment benefits.
(b) Notwithstanding the provisions of subsection (3)(a)
of this section, if an individual is paid twice for the same week(s), only the
amount in excess of the final entitlement is eligible to be waived.
(4) In applying ORS 657.317(4):
(a) No waiver shall be granted if the overpayment is a
result of willful misrepresentation or fraud as established in ORS 657.215.
(b) No waiver shall be granted if the overpayment
results from a decision which has been issued and become final under Chapter
657.
(c) No waiver shall be granted if the overpayment
results from the negotiation of an original and a replacement check which were
issued for the same period pursuant to OAR 471-030-0049.
(5) The determination to waive overpayments in
accordance with the provisions of ORS 657.317 and this rule shall be made by
employees authorized by the Director.
Stat. Auth.: ORS 105 Sec. 7, ORS
183, ORS 657.610, ORS 657.266, ORS 657.317 & ORS 657.270
Stats. Implemented: ORS 215
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
Rule
Caption: Allow employer hearing requests
relating to Unemployment Insurance tax by email and secure website.
Adm.
Order No.: ED 5-2011
Filed with Sec. of
State: 7-14-2011
Certified to be
Effective: 7-14-11
Notice Publication
Date: 6-1-2011
Rules Amended: 471-040-0005
Rules Repealed: 471-040-0005(T)
Subject: Add email and secure web submission as alternate means
for employers to request a hearing. The date of request is defined as the date
received by the Employment Department. UI Tax hearings can no longer be
requested directly from the Office of Administrative Hearings.
Rules Coordinator: Courtney Brooks—(503) 947-1724
471-040-0005
Request for Hearing
(1) A Request for hearing may be filed on forms
provided by the Employment Department or similar offices in other states. Use
of the form is not required provided the party specifically requests a hearing
or otherwise expresses a present intent to appeal.
(2) A request for hearing on an administrative decision
related to the payment or amount of unemployment insurance benefits may be
filed:
(a) By mail, by fax or by telephone with any Employment
Department Unemployment Insurance (UI) Center or UI Section in Oregon; or
(b) In person at any publicly accessible Employment
Department office in Oregon; or
(c) By mail or fax with the Office of Administrative
Hearings in Oregon.
(3) A request for hearing on an administrative decision
related to unemployment insurance taxes pursuant to ORS 657.683, 657.663,
657.485, and 657.457, must be in writing and may be filed:
(a) By mail or by fax with any Employment Department UI
Center or UI Tax Section office in Oregon; or
(b) In person at any publicly accessible Employment
Department office in Oregon.
(c ) By e-mail to the Employment Department’s e-mail
address as provided on the appealable document.
(d) Through the use of the Employment Department’s
secured website as provided on the appealable document.
(4) The filing date for any request for hearing shall
be determined as follows:
(a) When delivered in person to any Employment
Department office in the state of Oregon, the date of delivery, as evidenced by
the receipt date stamped or written by the agency employee who receives the
document, shall be the date of filing.
(b) When filed by mail, the date of filing shall be the
postmarked date affixed by the United States Postal Service or, in the absence
of a postmarked date, the most probable date of mailing.
(c) When filed by fax, the date of filing shall be the
encoded date on the fax document unless such date is absent, illegible, or
improbable, in which case the fax receipt date stamped or written by the agency
employee, if available, shall be the date of filing. If a filing date cannot
otherwise be determined, the most probable date of faxing shall be the date of
filing.
(d) When filed by telephone, the date of filing shall
be the date marked or stamped by the agency employee accepting the request for
hearing.
(e) When filed by e-mail, the date of filing shall be
the date of delivery, as evidenced by the receipt date on the Employment
Department’s e-mail system, according to Pacific Time.
(f) When filed through the secured website, the date of
filing shall be the date indicated in the confirmation e-mail sent to the
requestor by the Employment Department, according to Pacific Time.
(g) When filed by any other means, the date of filing
shall be the date of delivery, as evidenced by the receipt date stamped or
written by the employee of the Employment Department, Office of Administrative
Hearings or Employment Appeals Board who receives the document.
(5) A request for hearing with respect to a claim for
benefits shall not stay the payment of any benefits not placed in issue by the
request for hearing, nor shall it stay an order previously entered allowing
benefits.
(6) This rule is effective for all hearing requests
filed after the effective date of this rule.
Stat. Auth.: ORS 183.335, 657.260,
657.265 - 657.270, 657.335, 657.610 & OL 1993, Ch. 729
Stats. Implemented: ORS 657.280,
657.610 & 657
Hist.: 1DE 150, f. & ef.
2-9-76; 1DE 5-1979, f. & ef. 8-27-79; ED 4-1994, f. & cert. ef. 9-2-94;
ED 3-1999, f. 6-29-99, cert. ef. 7-4-99; ED 7-2003, f. 4-25-03, cert. ef.
4-27-03; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04; ED 2-2005, f. 4-29-05, cert. ef.
5-1-05; ED 6-2005(Temp), f. 9-16-05, cert. ef. 9-18-05 thru 2-14-06; ED 8-2005,
f. 12-23-05, cert. ef. 12-25-05; ED 1-2011(Temp), f. & cert. ef. 2-9-11
thru 7-31-11; ED 5-2011, f. & cert. ef. 7-14-11
Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.
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