[ Text of section effective until March 24, 2015. For text effective March 24, 2015, see below.]
Section 29D. (a) As used in this section the following words shall, unless the context clearly requires otherwise, have the following meanings:
"Affected unit'', a specified plant, department, shift, or other definable unit consisting of not less than two employees to which an approved worksharing plan applies.
"Approved worksharing plan'', a plan of an employer under which there is a reduction in the number of hours worked by the employees in an affected unit, and the affected employees share the work remaining after the normal weekly hours of work are reduced.
"Employee'', any individual employed full-time or on a permanent part-time basis by any employer subject to this chapter and in employment subject thereto.
"Fringe benefits'', include, but are not limited to, health insurance, retirement benefits, paid vacation and holidays, sick leave, and similar advantages which are incidents of employment.
"Normal weekly hours of work'', the normal number of hours of work each week for an employee in an affected unit when that unit is operating on a full-time basis, not to exceed forty hours and not including overtime.
"Unemployment benefits'' or "regular benefits'', benefits payable under this chapter other than worksharing benefits, reemployment assistance benefits or health insurance benefits.
"Worksharing benefits'', the benefits payable to employees in an affected unit under an approved worksharing plan.
"Worksharing employer'', an employer with an approved worksharing plan in effect.
(b) An employer wishing to participate in a worksharing program shall submit a written and signed worksharing plan to the commissioner for approval. The commissioner may approve a worksharing plan if the following criteria, and any other factors the commissioner deems relevant, are met:
(1) The plan identifies the affected unit or units to which it applies.
(2) The employees in the affected unit are identified by name, social security number, the normal weekly hours of work, proposed wage and hour reduction and any other information the commissioner deems necessary to carry out the provisions of this section.
(3) The normal weekly hours of work by employees in the affected unit are reduced by not less than ten per cent and not more than sixty per cent and the reduction in hours in each affected unit is spread equally among employees in the affected unit.
(4) The plan provides that health benefits, as defined in section 3(35) of the Employee Retirement Income Security Act of 1974, will continue to be provided to the employees in the affected units as though their normal weekly hours of work had not been reduced, provided that retirement benefits under a benefit pension plan, as defined in said section 3(35), will continue to be provided to the employees in the affected units on a pro-rated basis, and specifies the effect, if any, the reduction in the normal weekly hours of work will have on other fringe benefits provided by the employer.
(5) The plan certifies that the reduction in the normal weekly hours of work is in lieu of layoffs and states the reason for and expected duration of the work reduction. The plan shall not serve as a subsidy of seasonal employment during the off season, nor as a subsidy of temporary part time or intermittent employment.
(6) The written approval by the collective bargaining agent for each collective bargaining agreement for each affected unit is included in the plan.
(7) The plan specifies a beginning and ending date which shall be not more than twenty-six weeks from the beginning date.
(8) The plan contains an agreement by the employer to furnish all reports and information necessary for the administration of the plan and to permit access by the commissioner to all records necessary to verify and evaluate the plan.
(9) An employee's participation in the plan shall not be precluded or limited by any particular definition of attachment to the employer, such as, length of employment.
(10) The plan applies to only full-time or permanent part-time employees. Seasonal employees may not participate in a worksharing plan.
(11) The plan certifies that the employer has paid all contributions, payments in lieu of contributions, interest or penalty charges due under this chapter.
(12) The plan meets all other criteria prescribed by the commissioner.
(c) The commissioner shall approve or reject a worksharing plan in writing within fifteen working days after its receipt. The commissioner's rejection of the worksharing plan shall be final and shall not be appealable, but rejection shall not prevent an employer from submitting another plan for approval.
(d) An approved worksharing plan may be modified only with the approval of the commissioner. The worksharing employer shall notify the commissioner of any changes in the conditions of an approved plan within two working days. If the proposed changes meet the requirements for approval of a plan, the commissioner may approve the modifications. If the modifications do not meet the requirements for approval, the commissioner shall revoke the plan.
(e) The commissioner may revoke approval of a worksharing plan for good cause. The revocation order shall be in writing and shall specify the date the revocation is effective and the reasons for the revocation. Good cause for revocation shall include, but is not limited to, failure to comply with the assurances given in the plan, unreasonable revision of the productivity standards for the affected unit, conduct or occurrences tending to defeat the intent and effective operation of the plan, and violation of the criteria on which approval of the plan was based. Such action may be initiated at any time by the commissioner on his own motion, or at the request of any of the affected unit's employees, or at the request of the appropriate collective bargaining agent. The revocation order shall be final and not appealable.
(f) At the end of the worksharing period provided in paragraph (7) of subsection (b), the worksharing employer may submit a new worksharing plan to the commissioner for approval.
(g) The provisions of section forty-seven shall apply to any information submitted in connection with an application for approval or modification of a worksharing plan, the implementation of an approved worksharing plan, or the payment of worksharing benefits. An employer shall also be liable for the repayment to the commissioner of any worksharing benefits improperly paid by the commissioner as a result of information the employer submitted to the commissioner in connection with the approval, modification or implementation of a worksharing plan which is substantially misleading or contains a material misrepresentation of fact. In addition thereto, a claimant shall be liable for the repayment to the commissioner of any worksharing benefits which were improperly paid due to the fault of the claimant. The commissioner may utilize any remedies provided by this chapter to recover worksharing benefits.
(h)(1) An individual shall be eligible to receive worksharing benefits, subsequent to serving a waiting period as prescribed by the commissioner, with respect to any week only if, in addition to meeting the other conditions of eligibility for regular benefits under this chapter which are not inconsistent with this section, the commissioner finds that (i) the individual is employed as a member of an affected unit under an approved worksharing plan in effect, and (ii) the individual is able to work and is available for the normal weekly hours of work with the worksharing employer. An otherwise eligible affected individual shall not be denied worksharing benefits for any week by reason of the application of provisions relating to availability for work, active search for work or applying for or accepting suitable work with other than the worksharing employer.
(2) An individual shall be deemed to be unemployed in any week for which remuneration is payable to him as an employee in an affected unit for less than the employee's normal weekly hours of work as specified under the approved worksharing plan in effect for that week.
(3) An individual who is not eligible to receive unemployment benefits by reason of the application of paragraph (6) of subsection (d) of section twenty-nine shall not be eligible to receive worksharing benefits.
(i) The weekly worksharing benefit amount payable to an affected individual shall be the product of the regular weekly benefit amount, as defined in section twenty-nine, plus the allowance set forth in subsection (c) of section twenty-nine, multiplied by the percentage reduction in the individual's normal weekly hours of work, rounded to the next lower full dollar amount. The weekly worksharing benefit amount shall not be reduced by reason of application of the provisions of subsection (b) of section twenty-nine to remuneration received from the worksharing employer.
If in any week an individual performs services for a worksharing employer and an employer other than the worksharing employer, the weekly worksharing benefit amount shall be reduced by the amount by which the aggregate remuneration received from the non-worksharing employer exceeds thirty per cent of the maximum benefit rate in effect.
(j) The total worksharing benefit amount payable to an affected individual during any benefit year shall not exceed the amount of total benefits calculated under subsection (a) of section thirty minus the amount of regular benefits payable to said individual under this chapter.
(k) An individual who has received all the worksharing benefits or the combined regular benefits and worksharing benefits available in a benefit year shall be considered an exhaustee for purposes of extended benefits, as provided under the provisions of section thirty A, and, if otherwise eligible under those provisions, shall be eligible to receive extended benefits.
(l) An individual who performs no services during a week for the worksharing employer and is otherwise eligible shall be paid benefits in accordance with the other provisions of this chapter.
(m) Claims for worksharing benefits shall be filed in the same manner as claims for other benefits under this chapter or as otherwise prescribed by the commissioner.
(n) Notwithstanding any other provision of this chapter relating to charges, all worksharing benefits shall be charged to the account of the worksharing employer. Benefits paid under this section shall be charged to the employer's account in the same manner as regular benefits are charged, except that, if the employer's account reserve percentage is negative as of the most recent computation date, the employer shall be charged and billed in accordance with the provisions of section fourteen A as if the employer had elected to make payments in lieu of contributions. Benefits paid under this section to employees of employers who have elected to make payments in lieu of contributions shall be charged in accordance with section fourteen A.
(o) Except where inconsistent with the provisions of this section, the provisions of this chapter, including the rules and regulations adopted under this chapter, shall apply to benefits under this section.
Chapter 151A: Section 29D. Worksharing program; application and approval of worksharing plan; benefits
[ Text of section as amended by 2014, 144, Sec. 66 effective March 24, 2015. See 2014, 144, Sec. 81. For text effective until March 24, 2015, see above.]
Section 29D. (a) As used in this section the following words shall, unless the context clearly requires otherwise, have the following meanings:--
"Affected unit'', a specified plant, department, shift or other definable unit that includes 2 or more workers to which an approved worksharing plan applies.
"Director'', the director of the department or the director's authorized representative.
"Health and retirement benefits'', health benefits, and retirement benefits provided by an employer under a defined benefit pension plan as defined in 26 U.S.C. section 414(j), or contributions under a defined contribution plan as defined in section 26 U.S.C. 414(i), which are incidents of employment in addition to the cash remuneration earned.
"Unemployment compensation'', the unemployment benefits payable under this chapter other than worksharing benefits, including any amounts payable pursuant to an agreement under any Federal law providing for compensation, assistance or allowances with respect to unemployment.
"Usual weekly hours of work'', the usual hours of work for full-time or regular part-time employees in the affected unit when that unit is operating on its regular basis, not to exceed 40 hours and not including hours of overtime work.
"Worksharing benefits'', the unemployment benefits payable to employees in an affected unit under an approved worksharing plan, as distinguished from the unemployment benefits otherwise payable under the unemployment compensation provisions of this chapter.
"Worksharing plan'', a plan submitted by an employer, for approval by the director, under which the employer requests the payment of worksharing benefits to workers in an affected unit of the employer to avert layoffs.
(b) An employer wishing to participate in a worksharing program shall submit a signed written worksharing plan and application form to the director for approval; provided, however, that an employer having an account reserve percentage that is negative as of the most recent computation date shall not be eligible to participate. The director shall develop an application form to request approval of a worksharing plan and an approval process. Any application, whether for initial approval, approval following 1 or more disapprovals, for modification or for participation in another worksharing plan after the expiration or termination of an approved plan, shall include: (1) The affected unit or units covered by the plan, including the number of full-time or part-time workers in such unit, the percentage of workers in the affected unit covered by the plan, identification of each individual employee in the affected unit by name, social security number and the employer's unemployment tax account number and any other information required by the director to identify plan participants.
(2) A description of how workers in the affected unit will be notified of the employer's participation in the worksharing program if such application is approved, including how the employer will notify those workers in a collective bargaining unit, as well as any workers in the affected unit who are not in a collective bargaining unit. If the employer will not provide advance notice to workers in the affected unit, the employer shall explain in a statement in the application why it is not feasible to provide such notice.
(3) A requirement that the employer identify the usual weekly hours of work for employees in the affected unit and the specific percentage by which their hours will be reduced during all weeks covered by the plan. An application shall specify the percentage of reduction for which a worksharing application may be approved which shall be not less than 10 per cent and not more than 60 per cent. If the plan includes any week for which the employer regularly provides no work due to a holiday or other plant closing, then such week shall be identified in the application.
(4) Certification by the employer that, if the employer provides health and retirement benefits to any employee whose usual weekly hours of work are reduced under the program, such benefits will continue to be provided to employees participating in the worksharing program under the same terms and conditions as though the usual weekly hours of work of such employee had not been reduced or to the same extent as other employees not participating in the worksharing program.
For defined benefit retirement plans, the hours that are reduced under the worksharing plan shall be credited for purposes of participation, vesting and accrual of benefits as though the usual weekly hours of work had not been reduced. The dollar amount of employer contributions to a defined contribution plan that are based on a percentage of compensation may be less due to the reduction in the employee's compensation.
Notwithstanding the above, an application may contain the required certification when a reduction in health and retirement benefits scheduled to occur during the duration of the plan will be applicable equally to employees who are not participating in the worksharing program and to those employees who are participating.
(5) Certification by the employer that the aggregate reduction in work hours is in lieu of temporary or permanent layoffs, or both. The application shall include an estimate of the number of workers who would have been laid off in the absence of the worksharing plan. The plan shall not serve as a subsidy of seasonal employment during the off season, nor as a subsidy of temporary part-time or intermittent employment.
(6) Agreement by the employer to: (i) furnish reports to the director relating to the proper conduct of the plan; (ii) allow the director or the director's authorized representatives access to all records necessary to approve or disapprove the plan application, and after approval of a plan, to monitor and evaluate the plan; and (iii) follow any other directives the director deems necessary for the agency to implement the plan and that are consistent with the requirements for plan applications.
(7) Certification by the employer that participation in the worksharing plan and its implementation are consistent with the employer's obligations under applicable federal and state laws.
(8) The effective date and duration of the plan, which shall expire not later than the end of the twelfth full calendar month after the effective date.
(9) The written approval by the collective bargaining agent for each collective bargaining agreement for each affected unit included in the plan.
(10) Any other provision added to the application by the director that the United States Secretary of Labor determines to be appropriate for purposes of a worksharing program.
(c) The director shall approve or disapprove a worksharing plan in writing within 15 days of its receipt and promptly communicate the decision to the employer. The disapproval shall be final, but the employer may submit another worksharing plan for approval not earlier than 7 days from the date of the disapproval.
(d) A worksharing plan shall be effective on the date that is mutually agreed upon by the employer and the director, which shall be specified in the notice of approval to the employer. The plan shall expire on the date specified in the notice of approval, which shall be either the date at the end of the twelfth full calendar month after its effective date or an earlier date mutually agreed upon by the employer and the director; provided, however, that if a worksharing plan is revoked by the director pursuant to subsection (e), the plan shall terminate on the date specified in the director's written order of revocation. An employer may terminate a worksharing plan at any time upon written notice to the director. Upon receipt of such notice from the employer, the director shall promptly notify each employee of the affected unit of the termination date. An employer may submit a new application to participate in another worksharing plan at any time after the expiration or termination date.
(e) The director may revoke approval of a worksharing plan for good cause at any time, including upon the request of any of the affected unit's employees. The revocation order shall be in writing and shall specify the reasons for the revocation and the date the revocation is effective.
The director may periodically review the operation of each employer's worksharing plan to assure that no good cause exists for revocation of the approval of the plan. Good cause shall include, but not be limited to, failure to comply with the assurances given in the plan, unreasonable revision of productivity standards for the affected unit, conduct or occurrences tending to defeat the intent and effective operation of the worksharing plan and violation of any criteria on which approval of the plan was based.
(f) An employer may request a modification of an approved plan by filing a written request with the director. The request shall identify the specific provisions proposed to be modified and provide an explanation of why the proposed modification is appropriate for the worksharing plan. The director shall approve or disapprove the proposed modification in writing within 15 days of receipt and promptly communicate the decision to the employer.
The director may approve a request for modification of the plan based on conditions that have changed since the plan was approved; provided that the modification is consistent with and supports the purposes for which the plan was initially approved. A modification shall not extend the expiration date of the original plan, and the director shall promptly notify the employer whether the plan modification has been approved and, if approved, the effective date of the modification.
No employer shall be required to request approval of a plan modification from the director if the change is not substantial, but the employer shall report every change to the plan to the director promptly and in writing. The director may terminate an employer's plan if the employer fails to meet this reporting requirement. If the director determines that the reported change is substantial, the director shall require the employer to request a modification to the plan.
(g) An individual may receive worksharing benefits for any week provided, that the individual is monetarily eligible for unemployment compensation, not otherwise disqualified for unemployment compensation and:
(1) During the week, the individual is employed as a member of an affected unit under an approved worksharing plan, which was approved prior to that week and the plan is in effect during the week for which worksharing benefits are claimed.
(2) Notwithstanding any provision of this chapter related to availability for work and actively seeking work, the individual is available for the individual's usual hours of work with the worksharing employer, which may include, for purposes of this section, participating in training to enhance job skills that is approved by the director such as employer-sponsored training or training funded under the Workforce Investment Act of 1998, Public Law 105-220.
(3) Notwithstanding any general or special law to the contrary, an individual covered by a worksharing plan shall be considered unemployed in any week during the duration of such plan if the individual's remuneration as an employee in an affected unit is reduced based on a reduction of the individual's usual weekly hours of work under an approved worksharing plan.
(h)(1) The worksharing weekly benefit amount shall be the product of the regular weekly unemployment compensation amount for a week of total unemployment multiplied by the percentage of reduction in the individual's usual weekly hours of work.
(2) An individual may be eligible for worksharing benefits or unemployment compensation, as appropriate, except that no individual shall be eligible for combined benefits in any benefit year in an amount more than the maximum entitlement established for regular unemployment compensation, nor shall an individual be paid worksharing benefits for more than 52 weeks under a worksharing plan.
(3) The worksharing benefits paid to an individual shall be deducted from the maximum entitlement amount of regular unemployment compensation established for that individual's benefit year.
(4) Provisions applicable to unemployment compensation claimants shall apply to worksharing claimants to the extent that they are not inconsistent with worksharing provisions. An individual who files an initial claim for worksharing benefits shall receive a monetary determination.
(5) This paragraph shall apply to individuals who work for both a worksharing employer and another employer during weeks covered by the approved worksharing plan:
(i) If the combined hours of work in a week for both employers does not result in a reduction of at least 10 per cent or, if higher, the minimum percentage of reduction required to be eligible for a worksharing benefit as provided in this section, of the usual weekly hours of work with the worksharing employer, the individual shall not be entitled to benefits under this section.
(ii) If the combined hours of work for both employers results in a reduction equal to or greater than 10 per cent; or, if higher, the minimum percentage reduction required to be eligible for a worksharing benefit as provided in state law, of the usual weekly hours of work for the worksharing employer, the worksharing benefit amount payable to the individual shall be reduced for that week and shall be determined by multiplying the weekly unemployment benefit amount for a week of total unemployment by the percentage by which the combined hours of work have been reduced by 10 per cent or, if higher, the minimum percentage reduction required to be eligible for a worksharing benefit as provided in this section, or more of the individual's usual weekly hours of work. A week for which benefits are paid under this clause shall be reported as a week of worksharing.
(iii) If an individual worked the reduced percentage of the usual weekly hours of work for the worksharing employer and is available for all of the individual's usual hours of work with the worksharing employer, and the individual did not work any hours for the other employer, either because of the lack of work with that employer or because the individual is excused from work with the other employer, the individual shall be eligible for worksharing benefits for that week. The benefit amount for such week shall be calculated as provided in subsection (i).
(6) An individual who is not provided any work during a week by the worksharing employer, or any other employer, and who is otherwise eligible for unemployment compensation shall be eligible for the amount of regular unemployment compensation to which the individual would otherwise be eligible.
(7) An individual who is not provided any work by the worksharing employer during a week, but who works for another employer and is otherwise eligible may be paid unemployment compensation for that week subject to the disqualifying income and other provisions applicable to claims for regular compensation.
(i) Worksharing benefits shall be charged to employers' experience rating accounts in the same manner as unemployment compensation is charged pursuant to this chapter. Employers liable for payments in lieu of contributions shall have worksharing benefits attributed to service in their employ in the same manner as unemployment compensation is attributed.
(j) An individual who has received all of the worksharing benefits or combined unemployment compensation and worksharing benefits available in a benefit year shall be considered an exhaustee for purposes of extended benefits, as provided in section 30A, and if otherwise eligible pursuant to those provisions, shall be eligible to receive extended benefits.
(k) The director may utilize any remedies provided by this chapter to recover worksharing benefits that were improperly paid as a result of information that was substantially misleading or that contained a material misrepresentation of fact and was submitted to the director in connection with the approval, modification or implementation of a worksharing plan.
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