House Study Bill 261



                                    HOUSE FILE       
                                    BY  (PROPOSED COMMITTEE ON COMMERCE,
                                         REGULATION AND LABOR BILL
                                         BY CHAIRPERSON JENKINS)


    Passed House, Date               Passed Senate,  Date             
    Vote:  Ayes        Nays           Vote:  Ayes        Nays         
                 Approved                            

                                      A BILL FOR

  1 An Act relating to the unemployment rate of contribution of a
  2    person who acquires an organization, trade, or business and
  3    providing penalties.
  4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  5 TLSB 3165HC 81
  6 kk/pj/5

PAG LIN



  1  1    Section 1.  Section 96.7, subsection 2, paragraph b, Code
  1  2 2005, is amended to read as follows:
  1  3    b.  (1)  If an enterprise organization, trade, or business,
  1  4 or a clearly segregable and identifiable part of an enterprise
  1  5 organization, trade, or business, for which contributions have
  1  6 been paid is sold or transferred to a subsequent employing
  1  7 unit, or if one or more employing units have been reorganized
  1  8 or merged into a single employing unit, and the successor
  1  9 employer, having qualified as an employer as defined in
  1 10 section 96.19, subsection 16, paragraph "b", continues to
  1 11 operate the enterprise organization, trade, or business, the
  1 12 successor employer shall assume the position of the
  1 13 predecessor employer or employers with respect to the
  1 14 predecessors' payrolls, contributions, accounts, and
  1 15 contribution rates to the same extent as if no change had
  1 16 taken place in the ownership or control of the enterprise
  1 17 organization, trade, or business.  However, the successor
  1 18 employer shall not assume the position of the predecessor
  1 19 employer or employers with respect to the predecessor
  1 20 employer's or employers' payrolls, contributions, accounts,
  1 21 and contribution rates which are attributable to that part of
  1 22 the enterprise organization, trade, or business transferred,
  1 23 unless the successor employer applies to the department within
  1 24 ninety days from the date of the partial transfer, and the
  1 25 succession is approved by the predecessor employer or
  1 26 employers and the department.
  1 27    (2)  Notwithstanding any other provision of this chapter,
  1 28 if an employer sells or transfers its organization, trade, or
  1 29 business, or a portion thereof, to another employer, and at
  1 30 the time of the sale or transfer, there is substantially
  1 31 common ownership, management, or control of the two employers,
  1 32 then the unemployment experience attributable to the sold or
  1 33 transferred organization, trade, or business shall be
  1 34 transferred to the successor employer.  The transfer of part
  1 35 or all of an employer's workforce to another employer shall be
  2  1 considered a sale or transfer of the organization, trade, or
  2  2 business where the predecessor employer no longer operates the
  2  3 organization, trade, or business with respect to the
  2  4 transferred workforce and such organization, trade, or
  2  5 business is operated by the successor employer.
  2  6    (3)  Notwithstanding any other provision of this chapter,
  2  7 if a person is not an employer at the time such person
  2  8 acquires an organization, trade, or business of an employer,
  2  9 or a portion thereof, the unemployment experience of the
  2 10 acquired organization, trade, or business shall not be
  2 11 transferred to such person if the department finds such person
  2 12 acquired the organization, trade, or business solely or
  2 13 primarily for the purpose of obtaining a lower rate of
  2 14 contribution.  Instead, such person shall be assigned the
  2 15 applicable new employer rate under paragraph "c".
  2 16    In determining whether an organization, trade, or business
  2 17 or portion thereof was acquired solely or primarily for the
  2 18 purpose of obtaining a lower rate of contribution, the
  2 19 department shall use objective factors which may include the
  2 20 cost of acquiring the organization, trade, or business;
  2 21 whether the person continued the acquired organization, trade,
  2 22 or business; how long such organization, trade, or business
  2 23 was continued; and whether a substantial number of new
  2 24 employees was hired for performance of duties unrelated to the
  2 25 organization, trade, or business operated prior to the
  2 26 acquisition.  The department shall establish methods and
  2 27 procedures to identify the transfer or acquisition of an
  2 28 organization, trade, or business under this subparagraph and
  2 29 subparagraph (2).
  2 30    (4)  The predecessor employer, prior to entering into a
  2 31 contract with a successor employer relating to the sale or
  2 32 transfer of the enterprise organization, trade, or business,
  2 33 or a clearly segregable and identifiable part of the
  2 34 enterprise organization, trade, or business, shall disclose to
  2 35 the successor employer the predecessor employer's record of
  3  1 charges of benefits payments and any layoffs or incidences
  3  2 since the last record that would affect the experience record.
  3  3 A predecessor employer who fails to disclose or willfully
  3  4 discloses incorrect information to a successor employer
  3  5 regarding the predecessor employer's record of charges of
  3  6 benefits payments is liable to the successor employer for any
  3  7 actual damages and attorney fees incurred by the successor
  3  8 employer as a result of the predecessor employer's failure to
  3  9 disclose or disclosure of incorrect information.  The
  3 10 department shall include notice of the requirement of
  3 11 disclosure in the department's quarterly notification given to
  3 12 each employer pursuant to paragraph "a", subparagraph (6).
  3 13    (5)  The contribution rate to be assigned to the successor
  3 14 employer for the period beginning not earlier than the date of
  3 15 the succession and ending not later than the beginning of the
  3 16 next following rate year, shall be the contribution rate of
  3 17 the predecessor employer with respect to the period
  3 18 immediately preceding the date of the succession, provided the
  3 19 successor employer was not, prior to the succession, a subject
  3 20 employer, and only one predecessor employer, or only
  3 21 predecessor employers with identical rates, are involved.  If
  3 22 the predecessor employers' rates are not identical and the
  3 23 successor employer is not a subject employer prior to the
  3 24 succession, the department shall assign the successor employer
  3 25 a rate for the remainder of the rate year by combining the
  3 26 experience of the predecessor employers.  If the successor
  3 27 employer is a subject employer prior to the succession, the
  3 28 successor employer may elect to retain the employer's own rate
  3 29 for the remainder of the rate year, or the successor employer
  3 30 may apply to the department to have the employer's rate
  3 31 redetermined by combining the employer's experience with the
  3 32 experience of the predecessor employer or employers.  However,
  3 33 if the successor employer is a subject employer prior to the
  3 34 succession and has had a partial transfer of the experience of
  3 35 the predecessor employer or employers approved, then the
  4  1 department shall recompute the successor employer's rate for
  4  2 the remainder of the rate year.
  4  3    Sec. 2.  Section 96.16, Code 2005, is amended by adding the
  4  4 following new subsection:
  4  5    NEW SUBSECTION.  5.  EXPERIENCE AND TAX RATE AVOIDANCE.  If
  4  6 a person knowingly violates or attempts to violate section
  4  7 96.7, subsection 2, paragraph "b", subparagraph (2) or (3),
  4  8 with respect to a transfer of unemployment experience, or if a
  4  9 person knowingly advises another person in a way that results
  4 10 in a violation of such subparagraph, the person shall be
  4 11 subject to the penalties established in this subsection.  If
  4 12 the person is an employer, the employer shall be assigned a
  4 13 penalty rate of contribution of two percent of taxable wages
  4 14 in addition to the regular contribution rate assigned for the
  4 15 year during which such violation or attempted violation
  4 16 occurred and for the two rate years immediately following.  If
  4 17 the person is not an employer, the person shall be subject to
  4 18 a civil penalty of not more than five thousand dollars for
  4 19 each violation which shall be deposited in the unemployment
  4 20 compensation reserve fund created in section 96.9, subsection
  4 21 8, and shall be treated as interest earned on moneys in the
  4 22 reserve fund.  In addition to any other penalty imposed in
  4 23 this subsection, violations described in this subsection shall
  4 24 also constitute an aggravated misdemeanor.
  4 25    For purposes of this subsection, "knowingly" means having
  4 26 actual knowledge of or acting with deliberate ignorance of or
  4 27 reckless disregard for the requirement or prohibition
  4 28 involved.  For purposes of this subsection, "violates or
  4 29 attempts to violate" includes, but is not limited to, the
  4 30 intent to evade, misrepresentation, and willful nondisclosure.
  4 31                           EXPLANATION
  4 32    This bill relates to an employer's rate of contribution for
  4 33 unemployment tax where the employer acquires an organization,
  4 34 trade, or business of another employer.
  4 35    The bill provides that where an employer sells or transfers
  5  1 all or a portion of its organization, trade, or business, to
  5  2 another employer which has common ownership, management, or
  5  3 control with the selling employer, and the selling employer no
  5  4 longer performs the same trade or business, then the
  5  5 unemployment experience of the selling employer shall be
  5  6 transferred to the acquiring employer for calculation of the
  5  7 unemployment rate.  If the person that acquires the business
  5  8 is not an employer at the time of sale or transfer, then the
  5  9 business shall be assigned the contribution rate as a new
  5 10 employer if the department of workforce development determines
  5 11 that the business was acquired for the primary purpose of
  5 12 obtaining a lower rate of contribution.  The department shall
  5 13 make the determination based on objective factors which may
  5 14 include an evaluation of the sales price, the continuation of
  5 15 the business activity, and whether the employees of the
  5 16 original business were hired to perform different work.
  5 17    The bill prescribes multiple administrative and criminal
  5 18 penalties for violations.  An employer who knowingly sells or
  5 19 transfers, attempts to sell or transfer, or advises another
  5 20 person to transfer or sell its organization, trade, or
  5 21 business to another employer with substantially common
  5 22 ownership management or control in violation of Code section
  5 23 96.7, subsection 2, paragraph "b", subparagraph (2), shall be
  5 24 assigned an additional penalty contribution rate of 2 percent
  5 25 of taxable wages for at least two years.  Persons who
  5 26 knowingly acquire an organization, trade, or business for the
  5 27 purpose of obtaining a lower rate of contribution in violation
  5 28 of Code section 96.7, subsection 2, paragraph "b",
  5 29 subparagraph (3), shall be subject to a civil penalty of not
  5 30 more than $5,000 for each violation to be deposited in the
  5 31 unemployment compensation reserve fund as interest.
  5 32 Violations described in the bill are also classified as
  5 33 aggravated misdemeanors.  An aggravated misdemeanor is
  5 34 punishable by confinement for no more than two years and a
  5 35 fine of at least $500 but not more than $5,000.
  6  1    The bill provides definitions of "knowingly" and "violates
  6  2 or attempts to violate".
  6  3 LSB 3165HC 81
  6  4 kk:rj/pj/5