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Oregon Bulletin

October 1, 2013

Employment Department, Chapter 471

Rule Caption: 2013 Claim Updates

Adm. Order No.: ED 2-2013(Temp)

Filed with Sec. of State: 8-22-2013

Certified to be Effective: 9-1-13 thru 2-26-14

Notice Publication Date:

Rules Adopted: 471-030-0058

Rules Amended: 471-030-0040, 471-030-0045, 471-030-0053

Subject: Updates to rules dealing with claimants:

   0040 — Initial claims will no longer be backdated to a prior week, they will now be effective the week within which they are filed.

   0045 — Claimants will have seven (7) days from the week ending date to claim a week when in continuous claim status.

   0053 — Provides standards for waiver approval process, clarifies waives collection, creates regular review period.

   0058 — Rules for implementation of Treasury Offset Program to allow offset of federal tax returns on fraud UI debt.

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

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

Stats. Implemented: ORS 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

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 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 183.335, 657.260, 657.265-270, 657.335, 657.610, 729 & OL 1993

Stats. Implemented: ORS 657.215 & 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

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 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.

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

(9) 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.

(10) 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.

(11) 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.

(12) 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 105 Sec. 7, ORS 183, 657.610, 657.266, 657.317 & 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; 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

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

Stats. Implemented: ORS 657.255

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


Rule Caption: 2013 Unemployment Insurance rule updates from statue changes enacted in the 2013 legislative session

Adm. Order No.: ED 3-2013(Temp)

Filed with Sec. of State: 9-10-2013

Certified to be Effective: 10-1-13 thru 3-28-14

Notice Publication Date:

Rules Amended: 471-030-0052

Subject: Update to state fraud penalty assessed on claimants due to misrepresentation. Additional language added to increase penalties based on repeated misrepresentation occurrences. Clarifies when disqualification may be canceled.

Rules Coordinator: Janet Orton—(503) 947-1724

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 ORS 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, 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 shall 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

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, 2012.

2.) Copyright 2013 Oregon Secretary of State: Terms and Conditions of Use

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