title-71•Title 71 — Labor and Industry
Mississippi Code of 1972 — Title 71. Labor and Industry
Text as published by FindLaw, current as of 2025-01-01.
Miss. Code Ann. § 1-1-9 asserts that copyright in the Mississippi Code of 1972, including catchlines, section numbering, source lines and annotations, is owned by the State of Mississippi.
Chapter 1 Employer and Employee
§ 71-1-1
The state board of health is authorized to establish an occupational health and safety program and is empowered:
(a) To employ such qualified personnel as staff to carry out the duties and responsibilities set forth herein;
(b) To develop and make available upon request to all employers of the state, including public employers, information, consultation and assistance related to safety and health laws, regulations, measures and standards; to participate and assist with training and educational programs, directed toward employee safety and disease prevention;
(c) To employ such personnel and procure such equipment as necessary to provide on-site consultive services related to assistance, information, education or training of employers and employees toward compliance with safety and health standards and toward the establishment of safety and health programs to prevent work-connected disabilities;
(d) To collect, compile and report statistics related to work-connected disabilities in Mississippi; such statistical work shall be performed in cooperation with other statistic-gathering agencies with the federal and state governments. Such statistical reports as may be available shall be made known to employers and employees.
(e) To receive such federal or state grants and appropriations as available to further the education, training and assistance to the employers and employees of Mississippi in preventing work-connected disabilities.
(f) Nothing in this section shall be construed as authorizing the state board of health to administer or enforce in any way the Federal Occupational Safety and Health Act, known as OSHA.
§ 71-1-17
No boy or girl under the age of fourteen (14) years shall be employed or permitted to work in any mill, cannery, workshop, factory, or manufacturing establishment within this state.
§ 71-1-19
It shall be unlawful for any person, firm, or corporation to employ, detain, or permit to work in any mill, cannery, workshop, factory, or manufacturing establishment in this state any child under the age of fourteen (14) years, or any child over the age of fourteen (14) years and under the age of sixteen (16) years, unless such child has complied with, or is complying with, the compulsory school attendance law. Such employer shall require such child to present the affidavit of the parent or guardian, or person standing in parental relation to such child, and the certificate of the superintendent or principal of the school of the district in which such child or children reside or in which they last attended school, stating the place and date of the birth of such child, the last school attendance of such child, the grade of study pursued, the name of the school, and the name of the teacher in charge. The employer shall preserve such affidavit and keep a complete register of all such affidavits, showing all the facts contained herein.
§ 71-1-21
No boy or girl over fourteen (14) years of age and under sixteen (16) years shall be permitted to work in any mill, cannery, workshop, factory, or manufacturing establishment more than eight (8) hours in one (1) day, or more than forty-four (44) hours in any one (1) week, or be employed in or detained in any such establishment between the hours of 7 p.m. and 6 a.m.
§ 71-1-23
It shall be the special duty of the sheriff of the county in which the mill, cannery, workshop, factory, or manufacturing establishment employing child labor is located to visit, at least once each month, such mill, cannery, workshop, factory, or manufacturing establishment to see to the enforcement of this chapter.
§ 71-1-25
It shall be the duty of the county health officer to visit, without notice of his intention to do so, all mills, canneries, workshops, factories, or manufacturing establishments employing child labor within his county at least twice each year, or oftener if requested by the sheriff, and to promptly report to the sheriff any unsanitary condition of the premises, any child or children afflicted with infectious, contagious, or communicable diseases, or whose physical condition renders such child or children incapacitated to perform the work required of them. The sheriff shall promptly remove such child or children from such mill, cannery, workshop, factory, or manufacturing establishment, and order the premises put in sanitary condition. The judgment of the county health officer as to the physical condition of the children and the sanitary condition of the premises shall be final and conclusive.
§ 71-1-27
Any officer, manager, or superintendent of any mill, cannery, workshop, factory, or manufacturing establishment in which child labor is employed who shall fail or refuse to give true and correct information demanded of him by any officer hereinbefore directed to inspect such mill, cannery, workshop, factory, or manufacturing establishment, or who shall fail or refuse to obey any lawful order of the sheriff or health officer of the county in which said mill, cannery, workshop, factory, or manufacturing establishment is located for carrying out the purpose of this chapter, shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than ten dollars ($10.00) nor more than one hundred dollars ($100.00).
§ 71-1-29
Any person, firm, or corporation, or the superintendent or any officer of the mill, cannery, workshop, factory, or manufacturing establishment employing any child, or permitting any child to be employed by or to work in, or to be detained in any mill, cannery, workshop, factory, or manufacturing establishment in this state contrary to law shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than fifty dollars ($50.00) nor more than one hundred dollars ($100.00), or may be sentenced to the county jail for not less than ten (10) days nor more than sixty (60) days, or both such fine and imprisonment.
§ 71-1-31
The provisions of Sections 71-1-17 to 71-1-29 shall not apply to fruit or vegetable canneries.
§ 71-1-35
(1) Every corporation, company, association, partnership and individual person engaged in manufacturing of any kind in this state employing as many as fifty (50) or more employees and employing public labor, and every public service corporation doing business in this state shall be required to make full payment to employees for services performed as often as once every two (2) weeks or twice during each calendar month, or on the second and fourth Saturday, respectively, of each month. Such payment or settlement shall include all amounts due for labor or services performed up to not more than ten (10) days previous to the time of payment, except that public service corporations shall not be required to make payment for labor or services performed up to more than fifteen (15) days prior to the time of payment.
(2) For the purposes of this section, the term “employee” shall not include any individual employed in a bona fide executive, administrative or professional capacity.
§ 71-1-37
Every person, company, association, partnership, manufacturing company, or railroad company now existing or hereafter organized in this state engaged in employing labor for manufacturing purposes, or any railroad within this state shall be prohibited from discounting any trade check, coupons, or other written instrument issued for the payment of such labor. It shall be unlawful for any person, partnership, corporation, or trade establishment purchasing said trade checks, coupons, or other instruments issued for the payment of such labor to discount the same. Any person, partnership, corporation, or trade establishment purchasing the same at a discount, or any company, corporation, railroad, or other person issuing said checks, coupons, or other written instruments who shall discount the same in settlement with the employees shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than ten dollars ($10.00) and not more than fifty dollars ($50.00) for each offense.
§ 71-1-39
All persons, firms, or corporations engaged in manufacturing and issuing trade checks, coupons, or other instruments of writing in payment for labor shall, on or after the regular pay day, cash said check or checks so issued at their face value less any amount that may be due by the party to whom issued. Any such person, firm, or corporation so engaged in manufacturing and failing to settle such claim as herein required shall be liable to pay to the holder thereof twenty-five percent. (25%) on the face of said check as damages in the event any suit or action shall be brought to enforce the payment thereof. This section shall only apply when the amount claimed is one hundred dollars ($100.00) or less.
§ 71-1-41
A trust of real or personal property, or real and personal property combined, created either heretofore or hereafter by an employer as part of a pension plan, disability or death benefit plan, or profit-sharing plan for the exclusive benefit of some or all of his or its employees, to which contributions are made by such employer or employees, or both, for the purpose of distributing to such employees the earnings and the principal of such trust, shall not be deemed to be invalid as violating any existing laws against perpetuities, restraints on alienation, suspension of the power of alienation, or the accumulation of income; but such a trust may continue for such time as may be necessary to accomplish the purpose for which it may be created.
No trust of real or personal property, or real and personal property combined, created either heretofore or hereafter under a retirement plan for which provision has been made under the laws of the United States of America exempting such trust from federal income tax shall be deemed to be invalid as violating any existing laws against perpetuities, restraints on alienation, suspension of the power of alienation of title to property, or the accumulation of income; but such a trust may continue for such time as may be necessary to accomplish the purposes for which it may be created, may be permitted to accumulate the income arising from the property held therein until such time as such income shall become distributable to the beneficiary or beneficiaries under the terms of the trust, may according to its terms be made irrevocable, and the interests of its beneficiary or beneficiaries therein may be made nontransferable by assignment or otherwise.
§ 71-1-43
The income or principal payable to a beneficiary or beneficiaries under any trust created by an employer as part of a pension plan, disability or death benefit plan, profit-sharing plan, or under any trust created under a retirement plan for which provision has been made under the laws of the United States of America exempting such trust from federal income tax shall not be pledged, assigned, transferred, sold, or in any manner whatsoever accelerated, anticipated, or encumbered by the beneficiary or beneficiaries. Nor shall any income or principal be in any manner subject or liable in the hands of the trustee for the debts, contracts, or engagements of the beneficiary or beneficiaries, or be subject to any assignment or other involuntary alienation or disposition whatsoever. Nor shall any income or principal be subject to the levy of any execution, writ of attachment, or garnishment thereon.
§ 71-1-45
No assignment or pledge of wages, in any form, made or executed directly or collaterally in the payment of, or as security for, the purchase of or contract to purchase any goods, wares, or merchandise shall be valid against or binding upon any employer, or the wages of any employee in the hands of, or owing, or to become owing to such employee, unless the assignee or pledgee thereof shall, prior to the delivery of the goods, wares, or merchandise so purchased or prior to consummation of any contract to purchase the same, serve upon the employer of such assignor, or pledgor, a duly executed copy of such assignment, or pledge, or contract to purchase and obtain such employer's acceptance of notice thereof and agreement in writing to be bound by the terms of such assignment or pledge.
§ 71-1-47
It is hereby declared to be the public policy of Mississippi that the right of a person or persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization:
(a) Any agreement or combination between any employer and any labor union or labor organization whereby any person not a member of such union or organization shall be denied the right to work for an employer, or whereby such membership is made a condition of employment or continuation of employment by such employer, or whereby any such union or organization acquires an employment monopoly in any enterprise, is hereby declared to be an illegal combination or conspiracy and against public policy.
(b) No person shall be required by an employer to become or remain a member of any labor union or labor organization as a condition of employment or continuation of employment by such employer.
(c) No person shall be required by an employer to abstain or refrain from membership in any labor union or labor organization as a condition of employment or continuation of employment.
(d) No employer shall require any person, as a condition of employment or continuation of employment, to pay any dues, fees, or other charges of any kind to any labor union or labor organization.
(e) Any person who may be denied employment or be deprived of continuation of his employment in violation of any paragraph of this section shall be entitled to recover from such employer and from any other person, firm, corporation, or association acting in concert with him, by appropriate action in the courts of this state, such actual damages as he may have sustained by reason of such denial or deprivation of employment.
(f) The provisions of this section shall not apply to any lawful contract now in force, but they shall apply to all contracts hereafter entered into and to any renewal or extension of an existing contract hereafter occurring.
(g) The provisions of this section shall not apply to any employer or employee under the jurisdiction of the Federal Railway Labor Act.
§ 71-1-49
(1) No person who is an alien, or who is or has been a member of the Communist Party, or who has been convicted of or served any part of a prison term resulting from his conviction of robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, or conspiracy to commit any such crimes, shall serve:
(a) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization, or as a manager, or any person occupying a bargaining position with industry, or
(b) as a labor relations consultant either of a labor organization or of an employer or both, or as an officer, director, agent, or employee (other than as an employee performing exclusively clerical or custodial duties) of any group or association of employers dealing with any labor organization, during or for five (5) years after the termination of his membership in the Communist Party, or for five (5) years after such conviction, or after the end of such imprisonment. No labor organization, group or association of employers, or officer thereof shall knowingly permit any person to assume or hold any office or paid position in violation of this section.
(2) Any person who willfully violates this section shall be guilty of a misdemeanor and, upon conviction thereof, be fined not more than one thousand dollars ($1,000.00) or imprisoned for not more than one (1) year, or both.
(3) For the purposes of this section, any person shall be deemed to have been “convicted” and under the disability of “conviction” from the date of the judgment of the trial court or the date of the final sustaining of such judgment on appeal, whichever is the later event, regardless of whether such conviction occurred before or after July 1, 1960.
§ 71-1-53
Any corporation or person or manager of any company or partnership who violates any of the provisions of this chapter for which a penalty is not otherwise provided shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars ($25.00) nor more than two hundred fifty dollars ($250.00) for each offense; and each day's violation shall constitute a separate offense.
§ 71-1-55
No employer shall prohibit an employee from expressing breast milk during any meal period or other break period provided by the employer.
Chapter 3 Workers' Compensation
§ 71-3-1
(1) This chapter shall be known and cited as “Workers' Compensation Law,” and shall be administered by the Workers' Compensation Commission, hereinafter referred to as the “commission,” cooperating with other state and federal authorities for the prevention of injuries and occupational diseases to workers and, in event of injury or occupational disease, their rehabilitation or restoration to health and vocational opportunity; and this chapter shall be fairly and impartially construed and applied according to the law and the evidence in the record, and, notwithstanding any common law or case law to the contrary, this chapter shall not be presumed to favor one party over another and shall not be liberally construed in order to fulfill any beneficent purposes.
(2) Wherever used in this chapter, or in any other statute or rule or regulation affecting the former Workmen's Compensation Law and any of its functions or duties:
(a) The words “workmen's compensation” shall mean “workers' compensation”; and
(b) The word “commission” shall mean the Workers' Compensation Commission.
(3) The primary purposes of the Workers' Compensation Law are to pay timely temporary and permanent disability benefits to every worker who legitimately suffers a work-related injury or occupational disease arising out of and in the course of his employment, to pay reasonable and necessary medical expenses resulting from the work-related injury or occupational disease, and to encourage the return to work of the worker.
§ 71-3-3
Unless the context otherwise requires, the definitions which follow govern the construction and meaning of the terms used in this chapter:
(a) “Person” includes an individual, firm, voluntary association or a corporation.
(b) “Injury” means accidental injury or accidental death arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner. Untoward event includes events causing unexpected results. An untoward event or events shall not be presumed to have arisen out of and in the course of employment, except in the case of an employee found dead in the course of employment. This definition includes injuries to artificial members, and also includes an injury caused by the willful act of a third person directed against an employee because of his employment while so employed and working on the job, and disability or death due to exposure to ionizing radiation from any process in employment involving the use of or direct contact with radium or radioactive substances with the use of or direct exposure to roentgen (X-rays) or ionizing radiation. In radiation cases only, the date of disablement shall be treated as the date of the accident. Occupational diseases, or the aggravation thereof, are excluded from the term “injury,” provided that, except as otherwise specified, all provisions of this chapter apply equally to occupational diseases as well as injury.
(c) “Death,” when mentioned as a basis for the right to compensation, means only death resulting from such an injury.
(d) “Employee” means any person, including a minor whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied, provided that there shall be excluded therefrom all independent contractors and especially any individual performing service in, and at the time of, the sale of newspapers or magazines to ultimate consumers under an arrangement under which the newspapers or magazines are to be sold by the individual at a fixed price, the individual's compensation being based on the retention of the excess of such price over the amount at which the newspapers or magazines are charged to the individual, whether or not the individual is guaranteed a minimum amount of compensation for such service or is entitled to be credited with the unsold newspapers or magazines returned. A student of an educational institution who, as a part of such educational institution's curriculum, is receiving practical training at any facility, who is under the active and direct supervision of the personnel of the facility and/or an instructor of the educational institution, and who is not receiving wages as a consequence of participation in such practical training shall not be considered an employee of such facility on account of participation in such practical training.
(e) “Employer,” except when otherwise expressly stated, includes a person, partnership, association, corporation and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association or corporation.
(f) “Carrier” means any person authorized in accordance with the provisions of this chapter to insure under this chapter and includes self-insurers.
(g) “Self-insurer” is an employer who has been authorized under the provisions of this chapter to carry his own liability on his covered employees without insuring in a stock or mutual carrier.
(h) “Commission” means the Workers' Compensation Commission.
(i) “Disability” means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.
(j) “Compensation” means the money allowance payable to an injured worker or his dependents as provided in this chapter, and includes funeral benefits provided therein.
(k) “Wages” includes the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of injury, and also the reasonable value of board, rent, housing, lodging or similar advantage received from the employer and gratuities received in the course of employment from others than the employer. The term “wages” shall not include practical training received by students of an educational institution as a part of such educational institution's curriculum.
(l) “Child” shall include a posthumous child, a child legally adopted prior to the injury of the employee, a child in relation to whom the deceased employee stood in the place of a parent for at least one (1) year prior to the time of injury and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent on him. “Grandchild” means a child as above defined of a child as above defined. “Brother” and “sister” include stepbrothers and stepsisters, half brothers and half sisters, and brothers and sisters by adoption, but does not include married brothers nor married sisters unless wholly dependent on the employee. “Child,” “grandchild,” “brother” and “sister” include only persons who are under eighteen (l8) years of age, and also persons who, though eighteen (l8) years of age or over, are wholly dependent upon the deceased employee and incapable of self-support by reason of mental or physical disability, and also a child eighteen (18) years of age or older, until his twenty-third birthday, who is dependent upon the deceased and is pursuing a full-time education.
(m) “Parent” includes stepparents and parents by adoption, parents-in-law or any person who for more than three (3) years prior to the death of the deceased employee stood in the place of a parent to him, or her, if dependent on the injured employee.
(n) The term “surviving spouse” includes the decedent's legal wife or husband, living with him or her or dependent for support upon him or her at the time of death or living apart for justifiable cause or by reason of desertion at such time, provided, however, such separation had not existed for more than three (3) years without an award for separate maintenance or alimony or the filing of a suit for separate maintenance or alimony in the proper court in this state. The term “surviving spouse” shall likewise include one not a legal wife or husband but who had entered into a ceremonial marriage with the decedent at least one (1) year prior to death and who, on the date of the decedent's death, stood in the relationship of a wife or husband, provided there was no living legal spouse who had protected her or his rights for support by affirmative action as hereinabove required. The term “surviving spouse” as contemplated in this chapter shall not apply to any person who has, since his or her separation from decedent, entered into a ceremonial marriage or lived in open adultery with another.
(o) The term “adoption” or “adopted” means legal adoption prior to the time of the injury.
(p) The singular includes the plural and the masculine includes the feminine and neuter.
(q) It is expressly provided, agreed and understood in determining beneficiaries under this section that a surviving spouse suffering a mental or physical handicap and children under the age of eighteen (18) years are presumed to be dependent.
(r) “Independent contractor” means any individual, firm or corporation who contracts to do a piece of work according to his own methods without being subject to the control of his employer except as to the results of the work, and who has the right to employ and direct the outcome of the workers independent of the employer and free from any superior authority in the employer to say how the specified work shall be done or what the laborers shall do as the work progresses, one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result.
(s) “Average weekly wage for the state” means an amount determined by the commission as of October 1 of each year based upon wage and employment statistics reported to the commission by the Mississippi Employment Security Commission. Such amount shall be based upon data for the preceding twelve-month period and shall be effective from and after January 1 of the following year.
§ 71-3-5
The following shall constitute employers subject to the provisions of this chapter:
Every person, firm and private corporation, including any public service corporation but excluding, however, all nonprofit charitable, fraternal, cultural, or religious corporations or associations, that have in service five (5) or more workmen or operatives regularly in the same business or in or about the same establishment under any contract of hire, express or implied.
Any state agency, state institution, state department, or subdivision thereof, including counties, municipalities and school districts, or the singular thereof, not heretofore included under the Workers' Compensation Law, may elect, by proper action of its officers or department head, to come within its provisions and, in such case, shall notify the commission of such action by filing notice of compensation insurance with the commission. Payment for compensation insurance policies so taken may be made from any appropriation or funds available to such agency, department or subdivision thereof, or from the general fund of any county or municipality.
From and after July 1, 1990, all offices, departments, agencies, bureaus, commissions, boards, institutions, hospitals, colleges, universities, airport authorities or other instrumentalities of the “state” as such term is defined in Section 11-46-1, Mississippi Code of 1972, shall come under the provisions of the Workers' Compensation Law. Payment for compensation insurance policies so taken may be made from any appropriation or funds available to such office, department, agency, bureau, commission, board, institution, hospital, college, university, airport authority or other instrumentality of the state.
From and after October 1, 1990, counties and municipalities shall come under the provisions of the Workers' Compensation Law. Payment for compensation insurance policies so taken may be made from any funds available to such counties and municipalities.
From and after October 1, 1993, all “political subdivisions,” as such term is defined in Section 11-46-1, Mississippi Code of 1972, except counties and municipalities shall come under the provisions of the Workers' Compensation Law. Payment for compensation insurance policies so taken may be made from any funds available to such political subdivisions.
From and after July 1, 1988, the “state” as such term is defined in Section 11-46-1, Mississippi Code of 1972, may elect to become a self-insurer under the provisions elsewhere set out by law, by notifying the commission of its intent to become a self-insurer. The cost of being such a self-insurer, as provided otherwise by law, may be paid from funds available to the offices, departments, agencies, bureaus, commissions, boards, institutions, hospitals, colleges, universities, airport authorities or other instrumentalities of the state.
The Mississippi Transportation Commission, the Department of Public Safety and the Mississippi Industries for the Blind may elect to become self-insurers under the provisions elsewhere set out by law by notifying the commission of their intention of becoming such a self-insurer. The cost of being such a self-insurer, as provided elsewhere by law, may be paid from funds available to the Mississippi Transportation Commission, the Department of Public Safety or the Mississippi Industries for the Blind.
The Mississippi State Senate and the Mississippi House of Representatives may elect to become self-insurers under provisions elsewhere set out by law by notifying the commission of their intention of becoming such self-insurers. The cost of being such self-insurers, as provided elsewhere by law, may be paid from funds available to the Mississippi State Senate and the Mississippi House of Representatives. The Mississippi State Senate and the Mississippi House of Representatives are authorized and empowered to provide workers' compensation benefits for employees after January 1, 1970.
Any municipality of the State of Mississippi having forty thousand (40,000) population or more desiring to do so may elect to become a self-insurer under provisions elsewhere set out by law by notifying the commission of its intention of becoming such an insurer. The cost of being such a self-insurer, as provided elsewhere by law, may be provided from any funds available to such municipality.
The commission may, under such rules and regulations as it prescribes, permit two (2) or more “political subdivisions,” as such term is defined in Section 11-46-1, Mississippi Code of 1972, to pool their liabilities to participate in a group workers' compensation self-insurance program. The governing authorities of any political subdivision may authorize the organization and operation of, or the participation in such a group self-insurance program with other political subdivisions, provided such program is approved by the commission. The cost of participating in a group self-insurance program may be provided from any funds available to a political subdivision.
Domestic servants, farmers and farm labor are not included under the provisions of this chapter, but this exemption does not apply to the processing of agricultural products when carried on commercially. Any purchaser of timber products shall not be liable for workers' compensation for any person who harvests and delivers timber to such purchaser if such purchaser is not liable for unemployment tax on the person harvesting and delivering the timber as provided by United States Code Annotated, Title 26, Section 3306, as amended. Provided, however, nothing in this section shall be construed to exempt an employer who would otherwise be covered under this section from providing workers' compensation coverage on those employees for whom he is liable for unemployment tax.
Employers exempted by this section may assume, with respect to any employee or classification of employees, the liability for compensation imposed upon employers by this chapter with respect to employees within the coverage of this chapter. The purchase and acceptance by such employer of valid workers' compensation insurance applicable to such employee or classification of employees shall constitute, as to such employer, an assumption by him of such liability under this chapter without any further act on his part notwithstanding any other provisions of this chapter, but only with respect to such employee or such classification of employees as are within the coverage of the state fund. Such assumption of liability shall take effect and continue from the effective date of such workers' compensation insurance and as long only as such coverage shall remain in force, in which case the employer shall be subject with respect to such employee or classification of employees to no other liability than the compensation as provided for in this chapter.
An owner/operator, and his drivers, must provide a certificate of insurance of workers' compensation coverage to the motor carrier or proof of coverage under a self-insured plan or an occupational accident policy. Any such occupational accident policy shall provide a minimum of One Million Dollars ($1,000,000.00) of coverage. Should the owner/operator fail to provide written proof of coverage to the motor carrier, then the owner/operator, and his drivers, shall be covered under the motor carrier's workers' compensation insurance program and the motor carrier is authorized to collect payment of the premium from the owner/operator. In the event that coverage is obtained by the owner/operator under a workers' compensation policy or through a self-insured or occupational accident policy, then the owner/operator, and his drivers, shall not be entitled to benefits under the motor carrier's workers' compensation insurance program unless the owner/operator has elected in writing to be covered under the carrier's workers' compensation program or policy or if the owner/operator is covered by the carrier's plan because he failed to obtain coverage. Coverage under the motor carrier's workers' compensation insurance program does not terminate the independent contractor status of the owner/operator under the written contract or lease agreement. Nothing shall prohibit or prevent an owner/operator from having or securing an occupational accident policy in addition to any workers' compensation coverage authorized by this section. Other than the amendments to this section by Chapter 523, 2006 Regular Session, 1 the provisions of this section shall not be construed to have any effect on any other provision of law, judicial decision or any applicable common law.
This chapter shall not apply to transportation and maritime employments for which a rule of liability is provided by the laws of the United States.
This chapter shall not be applicable to a mere direct buyer-seller or vendor-vendee relationship where there is no employer-employee relationship as defined by Section 71-3-3, and any insurance carrier is hereby prohibited from charging a premium for any person who is a seller or vendor rather than an employee.
Any employer may elect, by proper and written action of its own governing authority, to be exempt from the provisions of the Workers' Compensation Law as to its sole proprietor, its partner in a partnership or to its employee who is the owner of fifteen percent (15%) or more of its stock in a corporation, if such sole proprietor, partner or employee also voluntarily agrees thereto in writing. Any sole proprietor, partner or employee owning fifteen percent (15%) or more of the stock of his/her corporate employer who becomes exempt from coverage under the Workers' Compensation Law shall be excluded from the total number of workers or operatives toward reaching the mandatory coverage threshold level of five (5).
1
Senate Bill No. 2181 of the 2006 Regular Session became effective as Laws 2006, Ch. 523, amending this section.
§ 71-3-7
(1) Compensation shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease. An occupational disease shall be deemed to arise out of and in the course of employment when there is evidence that there is a direct causal connection between the work performed and the occupational disease. In all claims in which no benefits, including disability, death and medical benefits, have been paid, the claimant shall file medical records in support of his claim for benefits when filing a petition to controvert. If the claimant is unable to file the medical records in support of his claim for benefits at the time of filing the petition to controvert because of a limitation of time established by Section 71-3-35 or Section 71-3-53, the claimant shall file medical records in support of his claim within sixty (60) days after filing the petition to controvert.
(2) Where a preexisting physical handicap, disease, or lesion is shown by medical findings to be a material contributing factor in the results following injury, the compensation which, but for this subsection, would be payable shall be reduced by that proportion which such preexisting physical handicap, disease, or lesion contributed to the production of the results following the injury. The preexisting condition does not have to be occupationally disabling for this apportionment to apply.
(3) The following provisions shall apply to subsections (1) and (2) of this section:
(a) Apportionment shall not be applied until the claimant has reached maximum medical recovery.
(b) The employer or carrier does not have the power to determine the date of maximum medical recovery or percentage of apportionment. This must be done by the attorney-referee, subject to review by the commission as the ultimate finder of fact.
(c) After the date the claimant reaches maximum medical recovery, weekly compensation benefits and maximum recovery shall be reduced by that proportion which the preexisting physical handicap, disease, or lesion contributes to the results following injury.
(d) If maximum medical recovery has occurred before the hearing and order of the attorney-referee, credit for excess payments shall be allowed in future payments. Such allowances and method of accomplishment of the same shall be determined by the attorney-referee, subject to review by the commission. However, no actual repayment of such excess shall be made to the employer or carrier.
(4) No compensation shall be payable if the use of drugs illegally, or the use of a valid prescription medication(s) taken contrary to the prescriber's instructions and/or contrary to label warnings, or the use of medical cannabis in accordance with the Mississippi Medical Cannabis Act and rules and regulations adopted thereunder, or intoxication due to the use of alcohol of the employee was the proximate cause of the injury, or if it was the willful intention of the employee to injure or kill himself or another.
(5) Every employer to whom this chapter applies shall be liable for and shall secure the payment to his employees of the compensation payable under its provisions.
(6) In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment.
§ 71-3-9
(1) Except as provided under subsection (2) of this section, the liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.
(2) An employer shall not be liable under this chapter to a first responder, as defined in Section 25-15-403, if such first responder elects to receive benefits under the “Mississippi First Responders Health and Safety Act.”
§ 71-3-11
No compensation except medical benefits shall be allowed for the first five (5) days of the disability. In case the injury results in disability of fourteen (14) days or more, the compensation shall be allowed from the date of disability.
§ 71-3-13
(1) Compensation for disability or in death cases shall not exceed sixty-six and two-thirds percent (66- 2/3 %) of the average weekly wage for the state per week, nor shall it be less than Twenty-five Dollars ($25.00) per week except in partial dependency cases and in partial disability cases.
(2) Maximum recovery: The total recovery of compensation hereunder, exclusive of medical payments under Section 71-3-15, arising from the injury to an employee or the death of an employee, or any combination of such injury or death, shall not exceed the multiple of four hundred fifty (450) weeks times sixty-six and two-thirds percent (66- 2/3 %) of the average weekly wage for the state.
§ 71-3-15
(1) The employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, artificial members, and other apparatus for such period as the nature of the injury or the process of recovery may require. The injured employee shall have the right to accept the services furnished by the employer or, in his discretion, to select one (1) competent physician of his choosing and such other specialists to whom he is referred by his chosen physician to administer medical treatment. Referrals by the chosen physician shall be limited to one (1) physician within a specialty or subspecialty area. Except in an emergency requiring immediate medical attention, any additional selection of physicians by the injured employee or further referrals must be approved by the employer, if self-insured, or the carrier prior to obtaining the services of the physician at the expense of the employer or carrier. If denied, the injured employee may apply to the commission for approval of the additional selection or referral, and if the commission determines that such request is reasonable, the employee may be authorized to obtain such treatment at the expense of the employer or carrier. Approval by the employer or carrier does not require approval by the commission. A physician to whom the employee is referred by his employer shall not constitute the employee's selection, unless the employee, in writing, accepts the employer's referral as his own selection. However, if the employee is treated for his alleged work-related injury or occupational disease by a physician for six (6) months or longer, or if the employee has surgery for the alleged work-related injury or occupational disease performed by a physician, then that physician shall be deemed the employee's selection. Should the employer desire, he may have the employee examined by a physician other than of the employee's choosing for the purpose of evaluating temporary or permanent disability or medical treatment being rendered under such reasonable terms and conditions as may be prescribed by the commission. If at any time during such period the employee unreasonably refuses to submit to medical or surgical treatment, the commission shall, by order, suspend the payment of further compensation during such time as such refusal continues, and no compensation shall be paid at any time during the period of such suspension; provided, that no claim for medical or surgical treatment shall be valid and enforceable, as against such employer, unless within twenty (20) days following the first treatment the physician or provider giving such treatment shall furnish to the employer, if self-insured, or its carrier, a preliminary report of such injury and treatment, on a form or in a format approved by the commission. Subsequent reports of such injury and treatment must be submitted at least every thirty (30) days thereafter until such time as a final report shall have been made. Reports which are required to be filed hereunder shall be furnished by the medical provider to the employer or carrier, and it shall be the responsibility of the employer or carrier receiving such reports to promptly furnish copies to the commission. The commission may, in its discretion, excuse the failure to furnish such reports within the time prescribed herein if it finds good cause to do so, and may, upon request of any party in interest, order or direct the employer or carrier to pay the reasonable value of medical services rendered to the employee.
(2) Whenever in the opinion of the commission a physician has not correctly estimated the degree of permanent disability or the extent of the temporary disability of an injured employee, the commission shall have the power to cause such employee to be examined by a physician selected by the commission, and to obtain from such physician a report containing his estimate of such disabilities. The commission shall have the power in its discretion to charge the cost of such examination to the employer, if he is a self-insurer, or to the insurance company which is carrying the risk.
(3) In carrying out this section, the commission shall establish an appropriate medical provider fee schedule, medical cost containment system and utilization review which incorporates one or more medical review panels to determine the reasonableness of charges and the necessity for the services, and limitations on fees to be charged by medical providers for testimony and copying or completion of records and reports and other provisions which, at the discretion of the commission, are necessary to encompass a complete medical cost containment program. The commission may contract with a private organization or organizations to establish and implement such a medical cost containment system and fee schedule with the cost for administering such a system to be paid out of the administrative expense fund as provided in this chapter. All fees and other charges for such treatment or service shall be limited to such charges as prevail in the same community for similar treatment and shall be subject to regulation by the commission. No medical bill shall be paid to any doctor until all forms and reports required by the commission have been filed. Any employee receiving treatment or service under the provisions of this chapter may not be held responsible for any charge for such treatment or service, and no doctor, hospital or other recognized medical provider shall attempt to bill, charge or otherwise collect from the employee any amount greater than or in excess of the amount paid by the employer, if self-insured, or its workers' compensation carrier. Any dispute over the amount charged for service rendered under the provisions of this chapter, or over the amount of reimbursement for services rendered under the provisions of this chapter, shall be limited to and resolved between the provider and the employer or carrier in accordance with the fee dispute resolution procedures adopted by the commission.
(4) The liability of an employer for medical treatment as herein provided shall not be affected by the fact that his employee was injured through the fault or negligence of a third party, not in the same employ, provided the injured employee was engaged in the scope of his employment when injured. The employer shall, however, have a cause of action against such third party to recover any amounts paid by him for such medical treatment.
(5) An injured worker who believes that his best interest has been prejudiced by the findings of the physician designated by the employer or carrier shall have the privilege of a medical examination by a physician of his own choosing, at the expense of the carrier or employer. Such examination may be had at any time after injury and prior to the closing of the case, provided that the charge shall not exceed One Hundred Dollars ($100.00) and shall be paid by the carrier or employer where the previous medical findings are upset, but paid by the employee if previous medical findings are confirmed.
(6) Medical and surgical treatment as provided in this section shall not be deemed to be privileged insofar as carrying out the provisions of this chapter is concerned. All findings pertaining to a second opinion medical examination, at the instance of the employer shall be reported as herein required within fourteen (14) days of the examination, except that copies thereof shall also be furnished by the employer or carrier to the employee. All findings pertaining to an independent medical examination by order of the commission shall be reported as provided in the order for such examination.
(7) Any medical benefits paid by reason of any accident or health insurance policy or plan paid for by the employer, which were for expenses of medical treatment under this section, are, upon notice to the carrier prior to payment by it, subject to subrogation in favor of the accident or health insurance company to the extent of its payment for medical treatment under this section. Reimbursement to the accident or health insurance company by the carrier or employer, to the extent of such reimbursement, shall constitute payment by the employer or carrier of medical expenses under this section. Under no circumstances, shall any subrogation be had by any insurance company against any compensation benefits paid under this chapter.
§ 71-3-17
Compensation for disability shall be paid to the employee as follows:
(a) Permanent total disability: In case of total disability adjudged to be permanent, sixty-six and two-thirds percent (66-2/3%) of the average weekly wages of the injured employee, subject to the maximum limitations as to weekly benefits as set up in this chapter, shall be paid to the employee not to exceed four hundred fifty (450) weeks or an amount greater than the multiple of four hundred fifty (450) weeks times sixty-six and two-thirds percent (66-2/3%) of the average weekly wage for the state. Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two (2) thereof shall constitute permanent total disability. In all other cases, permanent total disability shall be determined in accordance with the facts.
(b) Temporary total disability: In case of disability, total in character but temporary in quality, sixty-six and two-thirds percent (66-2/3%) of the average weekly wages of the injured employee, subject to the maximum limitations as to weekly benefits as set up in this chapter, shall be paid to the employee during the continuance of such disability not to exceed four hundred fifty (450) weeks or an amount greater than the multiple of four hundred fifty (450) weeks times sixty-six and two-thirds percent (66-2/3%) of the average weekly wage for the state. Provided, however, if there arises a conflict in medical opinions of whether or not the claimant has reached maximum medical recovery and the claimant's benefits have been terminated by the carrier, then the claimant may demand an immediate hearing before the commissioner upon five (5) days' notice to the carrier for a determination by the commission of whether or not in fact the claimant has reached maximum recovery.
(c) Permanent partial disability: In case of disability partial in character but permanent in quality, the compensation shall be sixty-six and two-thirds percent (66-2/3%) of the average weekly wages of the injured employee, subject to the maximum limitations as to weekly benefits as set up in this chapter, which shall be paid following compensation for temporary total disability paid in accordance with paragraph (b) of this section, and shall be paid to the employee as follows:
| Member Lost Number | Weeks Compensation | | --- | --- | | (1) Arm | 200 | | (2) Leg | 175 | | (3) Hand | 150 | | (4) Foot | 125 | | (5) Eye | 100 | | (6) Thumb | 60 | | (7) First finger | 35 | | (8) Great toe | 30 | | (9) Second finger | 30 | | (10) Third finger | 20 | | (11) Toe other than great toe | 10 | | (12) Fourth finger | 15 | | (13) Testicle, one | 50 | | (14) Testicle, both | 150 | | (15) Breast, female, one | 50 | | (16) Breast, female, both | 150 |
(17) Loss of hearing: Compensation for loss of hearing of one (1) ear, forty (40) weeks. Compensation for loss of hearing of both ears, one hundred fifty (150) weeks.
(18) Phalanges: Compensation for loss of more than one (1) phalange of a digit shall be the same as for loss of the entire digit. Compensation for loss of the first phalange shall be one-half ( 1/2 ) of the compensation for loss of the entire digit.
(19) Amputated arm or leg: Compensation for an arm or leg, if amputated at or above wrist or ankle, shall be for the loss of the arm or leg.
(20) Binocular vision or percent of vision: Compensation for loss of binocular vision or for eighty percent (80%) or more of the vision of an eye shall be the same as for loss of the eye.
(21) Two (2) or more digits: Compensation for loss of two (2) or more digits, or one (1) or more phalanges of two (2) or more digits, of a hand or foot may be proportioned to the loss of the use of the hand or foot occasioned thereby, but shall not exceed the compensation for loss of a hand or foot.
(22) Total loss of use: Compensation for permanent total loss of use of a member shall be the same as for loss of the member.
(23) Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member.
(24) Disfigurement: The commission, in its discretion, is authorized to award proper and equitable compensation for serious facial or head disfigurements not to exceed Five Thousand Dollars ($5,000.00). No such award shall be made until a lapse of one (1) year from the date of the injury resulting in such disfigurement.
(25) Other cases: In all other cases in this class of disability, the compensation shall be sixty-six and two-thirds percent (66-2/3%) of the difference between his average weekly wages, subject to the maximum limitations as to weekly benefits as set up in this chapter, and his wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the commission on its own motion or upon application of any party in interest. Such payments shall in no case be made for a longer period than four hundred fifty (450) weeks.
(26) In any case in which there shall be a loss of, or loss of use of, more than one (1) member or parts of more than one (1) member set forth in subparagraphs (1) through (23) of this paragraph (c), not amounting to permanent total disability, the award of compensation shall be for the loss of, or loss of use of, each such member or parts thereof, which awards shall run consecutively, except that where the injury affects only two (2) or more digits of the same hand or foot, subparagraph (21) of this paragraph (c) shall apply.
§ 71-3-19
An employee who as a result of injury is or may be expected to be totally or partially incapacitated for a remunerative occupation and who, under the direction of the commission is being rendered fit to engage in a remunerative occupation may, in the discretion of the commission under regulations adopted by it, receive additional compensation necessary for his maintenance, but such additional compensation shall not exceed Twenty-five Dollars ($25.00) a week for not more than fifty-two (52) weeks.
§ 71-3-21
In case of temporary partial disability resulting in decrease of earning capacity, there shall be paid to the injured employee sixty-six and two-thirds percent (66- 2/3 %) of the difference between the injured employee's average weekly wages before the injury and his wage-earning capacity after the injury in the same or other employment, subject to the maximum limitations as to weekly benefits as set up in this chapter, payable during the continuance of such disability but in no case exceeding four hundred fifty (450) weeks or an amount greater than the multiple of four hundred fifty (450) weeks times sixty-six and two-thirds percent (66- 2/3 %) of the average weekly wage for the state.
§ 71-3-23
In all cases of claim for hernia, it shall be shown by a preponderance of the evidence:
(a) That the descent or protrusion of the hernia or rupture immediately followed as the result of sudden effort, severe strain, or the application of force to the abdominal wall;
(b) That there was severe pain in the region of the hernia or rupture;
(c) That there has been no descent or protrusion of the hernia or rupture prior to the accident for which compensation is claimed;
(d) That the physical distress resulting from the descent or protrusion of the hernia or rupture was noticed immediately by claimant, and communicated to his employer within a reasonable time; and
(e) That the physical distress following the descent or protrusion of the hernia or rupture was such as to require the attendance of a licensed physician or surgeon within five (5) days after the injury for which compensation is claimed. Postoperative hernias shall be considered as original hernias.
In every case of hernia or rupture as above defined, it shall be the duty of the employer forthwith to provide the necessary and proper medical, surgical, and hospital care and attention to effectuate a cure by radical operation of said hernia or rupture, and to pay compensation under the provisions of paragraph (b) of Section 71-3-17, not exceeding, however, a period of twenty-six (26) weeks.
In case the employee shall refuse to permit such operation, it shall be the duty of the employer to provide all necessary first aid, medical and hospital care and services, to supply the proper and necessary truss or other mechanical appliance to enable said employee to resume work, and shall further pay compensation under the provisions of paragraph (b) of Section 71-3-17, not exceeding, however, the period of thirteen (13) weeks.
In case death results within a period of one (1) year, either from the hernia or rupture or from the radical operation thereof, compensation shall be paid the dependents as provided in other death cases under this chapter.
§ 71-3-25
If the injury causes death, the compensation shall be known as a death benefit and shall be payable in the amount and to or for the benefit of the persons following:
(a) An immediate lump-sum payment of One Thousand Dollars ($1,000.00) to the surviving spouse, in addition to other compensation benefits.
(b) Reasonable funeral expenses not exceeding Five Thousand Dollars ($5,000.00) exclusive of other burial insurance or benefits.
(c) If there be a surviving spouse and no child of the deceased, to such surviving spouse thirty-five percent (35%) of the average wages of the deceased during widowhood or dependent widowhood and, if there be a surviving child or children of the deceased, the additional amount of ten percent (10%) of such wages for each such child. In case of the death or remarriage of such surviving spouse, any surviving child of the deceased employee shall have his compensation increased to fifteen percent (15%) of such wages, provided that the total amount payable shall in no case exceed sixty-six and two-thirds percent (66-2/3%) of such wages, subject to the maximum limitations as to weekly benefits as set up in this chapter. The commission may, in its discretion, require the appointment of a guardian for the purpose of receiving the compensation of a minor dependent. In the absence of such a requirement, the appointment of a guardian for such purposes shall not be necessary, provided that if no legal guardian be appointed, payment to the natural guardian shall be sufficient.
(d) If there be a surviving child or children of the deceased but no surviving spouse, then for the support of each such child twenty-five percent (25%) of the wages of the deceased, provided that the aggregate shall in no case exceed sixty-six and two-thirds percent (66-2/3%) of such wages, subject to the maximum limitations as to weekly benefits as set up in this chapter.
(e) If there be no surviving spouse or child, or if the amount payable to a surviving spouse and to children shall be less in the aggregate than sixty-six and two-thirds percent (66-2/3%) of the average wages of the deceased, subject to the maximum limitations as to weekly benefits as set up in this chapter, then for the support of grandchildren or brothers and sisters, if dependent upon the deceased at the time of the injury, fifteen percent (15%) of such wages for the support of each such person; and for the support of each parent or grandparent of the deceased, if dependent upon him at the time of injury, fifteen percent (15%) of such wages during such dependency. But in no case shall the aggregate amount payable under this subsection exceed the difference between sixty-six and two-thirds percent (66-2/3%) of such wages and the amount payable as hereinbefore provided to surviving spouse and for the support of surviving child or children, subject to the maximum limitations as to weekly benefits as set up in this chapter.
(f) The total weekly compensation payments to any or all beneficiaries in death cases shall not exceed the weekly benefits as set up in this chapter and shall in no case be paid for a longer period than four hundred fifty (450) weeks or for a greater amount than the multiple of four hundred fifty (450) weeks times sixty-six and two-thirds percent (66-2/3%) of the average weekly wage for the state.
(g) All questions of dependency shall be determined as of the time of the injury. A surviving spouse, child or children shall be presumed to be wholly dependent. All other dependents shall be considered on the basis of total or partial dependence as the facts may warrant.
§ 71-3-27
Compensation under this chapter to aliens not residents (or about to become nonresidents) of the United States or Canada shall be in the same amount as provided for residents, except that dependents in any foreign country shall be limited to surviving wife and child or children or, if there be no surviving wife or child or children, to surviving father or mother whom the employee has supported, either wholly or in part, for the period of one (1) year prior to the date of the injury, and except that the commission may, at its option or upon the application of the insurance carrier, commute all future installments of compensation to be paid to such aliens by payment of a lump sum equal to the present value of all future payments of compensation computed at four percent (4%) discount compounded annually.
§ 71-3-29
Rules of the commission shall govern compromise payments where the prescribed schedules are not applicable and which, in its discretion, may be made in cases where it is not possible to determine the exact extent of disability, as for example in certain injuries to the back or head. The commission shall also have full authority to adjudicate the disposition of death claims. Commutation and lump sum settlement payments shall be governed by rules of the commission, and shall not be made except when determined to be in the best interest of the injured worker or his dependents, the commission having final authority in such questions.
§ 71-3-31
Except as otherwise specifically provided, the basis for compensation under this chapter shall be the average weekly wages earned by the employee at the time of the injury, such wages to be determined from the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of fifty-two (52) weeks immediately preceding the date of the injury divided by fifty-two (52); but if the injured employee lost more than seven (7) days during such period, although not in the same week, then the earnings for the remainder of such fifty-two (52) weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. When the employment prior to the injury extended over a period of less than fifty-two (52) weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided that results just and fair to both parties will thereby be obtained. Where, by reason of the shortness of time during which the employee has been in the employment of his employer, it is impracticable to compute the average weekly wages by the above method of computation, regard shall be had to the average weekly amount which, during the first fifty-two (52) weeks prior to the injury or death, was being earned by a person in the same grade, employed at the same or similar work in the community. Wherever allowances of any character are made to an employee in lieu of wages or specified as part of the wage contract, they shall be deemed a part of his earnings.
§ 71-3-33
The commission may require the appointment by a court of competent jurisdiction, for any person who is mentally incompetent or a minor, of a guardian or other representative to receive compensation payable to such person under this chapter and to exercise the powers granted to or to perform the duties required of such person under this chapter.
§ 71-3-35
(1) No claim for compensation shall be maintained unless, within thirty (30) days after the occurrence of the injury, actual notice was received by the employer or by an officer, manager, or designated representative of an employer. If no representative has been designated by posters placed in one or more conspicuous places, then notice received by any superior shall be sufficient. Absence of notice shall not bar recovery if it is found that the employer had knowledge of the injury and was not prejudiced by the employee's failure to give notice. Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made and no application for benefits filed with the commission within two (2) years from the date of the injury or death, the right to compensation therefor shall be barred.
(2) If a person who is entitled to compensation under this chapter is mentally incompetent or a minor, the limitation for filing application for benefits shall not be applicable so long as such person has no guardian or other authorized representative, but shall be applicable in the case of a person who is mentally incompetent or a minor from the date of appointment of such guardian or other representative, or in the case of a minor, if no guardian is appointed before he becomes of age, from the date he becomes of age.
(3) Where recovery is denied to any person, in a suit brought at law or admiralty to recover damages in respect of injury or death, on the ground that such person was an employee and that the defendant was an employer within the meaning of this chapter and that such employer had secured compensation to such employee under this chapter, the limitation upon filing application for benefits shall begin to run only from the date of termination of such suit.
§ 71-3-37
(1) Compensation under this chapter shall be paid periodically, promptly, in the usual manner, and directly to the person entitled thereto, without an award except where liability to pay compensation is controverted by the employer.
(2) The first installment of compensation shall become due on the fourteenth (14th) day after the employer has notice, as provided in Section 71-3-35, of the injury or death, on which date all compensation then due shall be paid. Thereafter, compensation shall be paid in installments, every fourteen (14) days, except where the commission determines that payment in installments should be made at some other period.
(3) Upon making the first payment and upon suspension of payment for any cause, the employer shall immediately notify the commission in accordance with a form prescribed by the commission that payment of compensation has begun or has been suspended, as the case may be. No suspension in payments of compensation shall be made for refusing to submit to medical or surgical treatment until the reasonableness of such request or refusal has been determined by the commission, and a written order suspending payment issued.
(4) If the employer controverts the right to compensation he shall file with the commission, on or before the fourteenth (14th) day after he has knowledge of the alleged injury or death, a notice in accordance with a form prescribed by the commission, stating that the right to compensation is controverted, the name of the claimant, the name of the employer, the date of the alleged injury or death, and the grounds upon which the right to compensation is controverted. Failure to file this notice shall not prevent the employer raising any defense where claim is subsequently filed by the employee, nor shall the filing of the notice preclude the employer raising any additional defense.
(5) If any installment of compensation payable without an award is not paid within fourteen (14) days after it becomes due, as provided in subsection (2) of this section, there shall be added to such unpaid installment an amount equal to ten percent (10%) thereof, which shall be paid at the same time as, but in addition to, such installment unless notice is filed under subsection (4) of this section, or unless such nonpayment is excused by the commission after a showing by the employer that owing to conditions over which he had no control such installment could not be paid within the period prescribed for the payment.
(6) If any installment payable under the terms of an award is not paid within fourteen (14) days after it becomes due, there shall be added to such unpaid installment an amount equal to twenty percent (20%) thereof, which shall be paid at the same time as, but in addition to, such compensation unless review of the compensation order making such award is had.
(7) Within thirty (30) days after the final payment of compensation has been made, the employer shall send to the commission a notice in accordance with a form prescribed by the commission, stating that such final payment has been made, the total amount of compensation paid, the name of the employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid. If the employer fails so to notify the commission within such time, the commission may assess against such employer a civil penalty in an amount not exceeding One Hundred Dollars ($100.00). No case shall be closed nor any penalty be assessed without notice to all parties interested and without giving to all such parties an opportunity to be heard.
(8) The commission (a) may upon its own initiative at any time in a case in which payments are being made without an award, and (b) shall in any case where right to compensation is controverted or where payments of compensation have been stopped or suspended, upon receipt of notice from any person entitled to compensation or from the employer that the right to compensation is controverted or that payments of compensation have been stopped or suspended, make such investigations, cause such medical examinations to be made, hold such hearings, and take such further action as it considers will properly protect the rights of all parties.
(9) Whenever the commission deems it advisable, it may require any self-insurer to make a deposit with the State Treasurer to secure prompt and convenient payment of such compensation; and payments therefrom upon any awards shall be made upon order of the commission.
(10) Whenever the commission determines that it is for the best interests of a person entitled to compensation, the liability of the employer for compensation, or any part thereof as determined by the commission, may be discharged by the payment of a lump sum equal to the present value of future compensation payments commuted, computed at four percent (4%) true discount compounded annually. The probability of the death of the injured employee or other person entitled to compensation shall be determined in accordance with validated actuarial tables or factors as the commission finds equitable and consistent with the purposes of the Workers' Compensation Law, and the probability of the remarriage of the surviving spouse or other person entitled to compensation may be determined in accordance with rules adopted by the commission which shall apply validated actuarial tables or factors as the commission finds equitable and consistent with the purposes of the Workers' Compensation Law. The probability of the happening of any other contingency affecting the amount or duration of the compensation shall be disregarded. The commission shall be the sole judge as to whether or not a lump-sum payment shall be to the best interest of the injured worker or his dependents.
(11) If the employer has made advance payments of compensation, he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.
(12) An injured employee or, in case of death, his dependents or personal representative shall give receipts for payment of compensation to the employer paying the same; and whenever required, such employer shall produce the same for inspection by the commission.
(13) Whenever a dispute arises between two (2) or more parties as to which party is liable for the payment of workers' compensation benefits to an injured employee and there is no genuine issue of material fact as to the employee's employment, his average weekly wage, the occurrence of an injury, the extent of the injury, and the fact that the injury arose out of and in the course of the employment, the commission may require the disputing parties involved to pay benefits immediately to the employee and to share equally in the payment of those benefits until it is determined which party is solely liable, at which time the liable party must reimburse all other parties for the benefits they have paid to the employee with interest at the legal rate.
§ 71-3-38
While acting as a self-insurer as authorized by Section 71-3-5, the state highway commission is authorized and empowered to establish and maintain, from funds made available upon requisition from the state treasury, a special workmen's compensation account, and to deposit such funds therein, and to pay therefrom the workmen's compensation benefits as authorized by Section 71-3-37, and to pay such awards as may be entered and such other costs, expenses and benefits as may be incidental to the settlement of such workmen's compensation claims. Disbursement from such special account shall be by check properly drawn against such account and signed by such personnel as may be duly authorized by the state highway commission. Payment from the special account shall be deemed payments of and from the State of Mississippi.
§ 71-3-39
Every insurance company which transacts the business of compensation insurance and every employer who is subject to the workmen's compensation law, but who has not insured his liability, shall keep a record of all payments made under the provisions of this law, and of the time and manner of making such payments, and shall furnish such reports based upon these records to the workmen's compensation commission as it may require by general order, upon forms approved by the commission.
§ 71-3-41
No agreement by an employee to pay any portion of premium paid by his employer or to contribute to a benefit fund or department maintained by such employer for the purpose of providing compensation or medical services and supplies as required by this chapter shall be valid. Any employer who makes a deduction for such purpose from the pay of any employee entitled to the benefits of this chapter shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than one thousand dollars ($1,000.00).
No agreement by an employee to waive his right to compensation under this law shall be valid.
§ 71-3-43
No assignment, release, or commutation of compensation or benefits due or payable under this chapter, except as provided by this chapter, shall be valid; and such compensation and benefits shall be exempt from all claims of creditors and from levy, execution, and attachment or other remedy for recovery or collection of a debt, which exemption may be waived. This section prevails over Sections 75-9-406 and 75-9-408 of Article 9 of the Uniform Commercial Code to the extent, if any, that these sections may otherwise be applicable.
§ 71-3-45
Any person entitled to compensation under the provisions of this chapter shall have a lien against the assets of the carrier or employer for such compensation without limit of amount, and shall, upon insolvency, bankruptcy, or reorganization in bankruptcy proceedings of the carrier or employer, or both, be entitled to preference and priority in the distribution of the assets of such carrier or employer, or both.
§ 71-3-47
Except as otherwise provided by this chapter, the details of practice and procedure in the settlement and adjudication of claims shall be determined by rules of the commission, the text of which shall be published and be readily available to interested parties.
The commission shall have full power and authority to determine all questions relating to the payment of claims for compensation. The commission shall make or cause to be made such investigation as it deems necessary and, upon application of either party or upon its own initiative, shall order a hearing, shall make or deny an award, and shall file the same in its office.
Informal conferences and hearings in contested cases may be conducted by a duly designated representative of the commission. Upon the conclusion of any such hearing, the commission's representative shall make or deny an award, and file the decision in the office of the commission. Immediately after such filing, a notice of decision shall be sent to all interested parties. This decision shall be final unless within twenty (20) days a request or petition for review by the full commission is filed.
§ 71-3-49
(1) In case of default by the employer in the payment of any compensation due under an award for the period of thirty (30) days after payment is due and payable or, where the employer has failed to secure the payment of compensation to his employees as required, where there is such default in payment for a period of ten (10) days after same is due, any party in interest may file with the county clerk for the county in which the injury occurred or the county in which the employer has his principal place of business a certified copy of the decision of the commission awarding compensation or ending, diminishing or increasing compensation previously awarded, from which no appeal has been taken within the time allowed therefor or, if an appeal has been taken by an employer who has not complied with the provisions of Section 71-3-75, where he fails to deposit with the commission the amount of the award as security for its payment within ten (10) days after same is due and payable, and thereupon judgment must be entered in the circuit court by the clerk of such county in conformity therewith immediately upon the filing of such decision. If the payment in default be an installment, the commission may declare the entire award due and judgment may be entered in accordance with the provisions of this section. Such judgment shall be entered in the same manner, have the same effect, and be subject to the same proceedings as though rendered in a suit duly heard and determined by the circuit court, except that no appeal may be taken therefrom. The court shall vacate or modify such judgment to conform to any later award or decision of the commission upon presentation of a certified copy of such award or decision. The award may be so compromised by the commission as in its discretion may best serve the interest of the persons entitled to receive the compensation or benefits. Neither the commission nor any party in interest shall be required to pay any fee to any public officer for filing or recording any paper or instrument or for issuing a transcript of any judgment executed in pursuance of this section.
(2) In case of default by a self-insurer in payment of any compensation due under an award where the default is due to the insolvency of the self-insurer, the claimant may file a claim based on the award with the Mississippi Workers' Compensation Self-insurer Guaranty Association, pursuant to the rules and regulations of said association, as established and provided for in Sections 71-3-151 through 71-3-181.
§ 71-3-51
The final award of the commission shall be conclusive and binding unless either party to the controversy shall, within thirty (30) days from the date of its filing in the office of the commission and notification to the parties, appeal therefrom to the Supreme Court.
Such appeal may be taken by filing notice of appeal with the commission, whereupon the commission shall under its certificate transmit to the Supreme Court all documents and papers on file in the matter, together with a transcript of the evidence, the findings, and award, which shall thereupon become the record of the cause. Appeals shall be considered only upon the record as made before the commission. The Supreme Court shall always be deemed open for hearing of such appeals. The Supreme Court shall review all questions of law and of fact. If no prejudicial error be found, the matter shall be affirmed and remanded to the commission for enforcement. If prejudicial error be found, the same shall be reversed and the Supreme Court shall enter such judgment or award as the commission should have entered. An appeal from the commission to the Supreme Court shall not act as a supersedeas unless the court shall so direct, and then upon such terms as such court shall direct.
No controversy shall be heard by the commission or an award of compensation made therein while the same matter is pending either before a federal court or in any court in this state.
Any award of compensation made by the Supreme Court shall bear the same interest and penalties as do other judgments awarded in circuit court.
§ 71-3-53
Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. Such new order shall not affect any compensation previously paid, except that an award increasing the compensation rate may be made effective from the date of the injury; and if any part of the compensation due or to become due is unpaid, an award decreasing the compensation rate may be made effective from the date of the injury, and any payment made prior thereto in excess of such decreased rate shall be deducted from any unpaid compensation in such manner and by such method as may be determined by the commission.
§ 71-3-55
(1) In making an investigation or inquiry or conducting a hearing, the commission shall not be bound by common law or statutory rules of evidence or by technical or formal rules or procedure, except as provided by this chapter, but may make such investigation or inquiry or conduct such hearing in such manner as best to ascertain the rights of the parties. Declarations of a deceased employee concerning the injury in respect of which the investigation or inquiry is being made or the hearing conducted shall be received in evidence and shall, if corroborated by other evidence, be sufficient to establish the injury.
(2) Hearings before the commission shall be open to the public and shall be stenographically reported or recorded and transcribed. The commission shall by regulations provide for the preparation of a record of the hearings and other proceedings.
(3) Unless otherwise ordered by the commission, hearings shall be conducted in the county where the injury occurred.
§ 71-3-57
The commission shall regulate, by rules published and available to the parties, the summoning, attendance, use, and compensation of witnesses, and determine the qualifications of specialists and their scale of fees as expert witnesses. Unless otherwise provided by the commission, witnesses summoned in a proceeding before the commission or whose depositions are taken shall receive the same fees and mileage as witnesses in civil cases in courts of record.
§ 71-3-59
(1) If the court having jurisdiction of proceedings in respect of any claim or compensation order determined that the proceedings in respect of such claim or order have been instituted or continued without reasonable ground, the costs of such proceedings shall be assessed against the party who has so instituted or continued such proceedings.
(2) If the full commission determines that proceedings in respect to a claim have been instituted, continued or delayed, including by way of appeal to the commission, without reasonable ground, the full commission shall require the party who has so instituted, continued or delayed such proceedings or the attorney advising such party, or both, to pay the reasonable expenses, including attorney's fees, caused by such institution, continuance or delay to the opposing party. In addition to requiring the payment of reasonable expenses, including attorney's fees, to the opposing party, the commission may levy a civil penalty not to exceed Ten Thousand Dollars ($10,000.00) against such party, or attorney advising or assisting such party, or both, payable to the commission. Any such civil penalty levied and collected by the commission shall be deposited into the Administrative Expense Fund provided for in Section 71-3-97 and any such penalty which is not voluntarily paid may be collected by civil suit brought by the commission.
§ 71-3-61
(1) The commission and its hearing officers shall have power to preserve and enforce order during hearings; to issue subpoenas for, to administer oaths to, and to compel the attendance and testimony of witnesses or the production of books, papers, documents, and other evidence, or the taking of depositions before any designated individual competent to administer oaths; to examine witnesses; and to do all things conformable to law which may be necessary to enable them effectively to discharge the duties of their office.
(2) If any person in proceedings before the commission disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same, or neglects to produce, after having been ordered to do so, any pertinent book, paper, or document, or refuses to appear after having been subpoenaed or upon appearing refuses to take the oath as a witness, or after having taken the oath refuses to be examined according to law, the commission shall certify the facts to the court having jurisdiction in the place in which it is sitting, and the court shall thereupon in a summary manner hear the evidence as to the acts complained of and, if the evidence so warrants, punish such person in the same manner and to the same extent as for a contempt committed before the court, or commit such person upon the same condition as if the doing of the forbidden act had occurred with reference to the process of or in the presence of the court.
§ 71-3-63
(1) No claim for legal services or for any other services rendered in respect of a claim or award for compensation, to or on account of any person, shall be valid unless approved by the commission or, if proceedings for review of the order of the commission in respect of such claim or award are had before any court, unless approved by such court. Any claim so approved shall, in the manner and to the extent fixed by the commission or such court, be a lien upon such compensation.
(2) Any person (a) who receives any fee, other consideration, or any gratuity on account of services so rendered, unless such consideration or gratuity is approved by the commission or such court, or (b) who makes it a business to solicit employment for a lawyer or for himself in respect of any claim or award for compensation, shall be guilty of a misdemeanor and, upon conviction thereof, shall for each offense be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment not to exceed one (1) year, or by both such fine and imprisonment.
(3) Representation of one other than himself or herself before the commission shall be considered the practice of law, and all statutes applying to and regulating the practice in all other courts of law in this state shall likewise apply to practice before the commission, insofar as the qualifications of those practicing before the commission are concerned. This paragraph shall not be construed as tightening the rules of evidence which are otherwise relaxed in other sections of this chapter.
In no instance shall the amount recovered by an attorney for an appearance before the commission exceed twenty-five percent (25%) of the total award of compensation. Such limitations, however, shall not be construed as applying to a fee awarded for additional services by any superior court. Legal services rendered where no motion to controvert has been filed by either employer or employee shall be considered as consultation, and that factor shall be taken into consideration in awarding a fee. Attorneys may not recover attorney's fees based upon benefits voluntarily paid to an injured employee for temporary or permanent disability. Any settlement negotiated by an attorney shall not be considered a voluntary payment. In all instances, fees shall be awarded on the basis of fairness to both attorney and client. Although exceptions may be made in the interest of justice, it shall be deemed conducive to the best interest of all concerned for the commission to approve contracts for attorney's fees voluntarily entered into between attorney and client, within the limitations hereinabove set out.
When an award of compensation becomes final and an attorney's fee is outstanding, a partial lump-sum settlement sufficient to cover the attorney's fee approved therein by the commission shall be made immediately, from payments last to become due, and the deductions allowed by the law shall be borne equally by the attorney and the client.
§ 71-3-65
Every employer shall keep a record in respect of any injury to an employee. Such record shall contain such information of disability or death in respect of such injury as the commission may by regulation require, and shall be available to inspection by the commission or by any state authority at such times and under such conditions as the commission may by regulation prescribe.
§ 71-3-66
The noncontroverted case medical reports, rehabilitation counselor reports and psychological reports of the commission, insofar as they refer to accidents, injuries and settlements, shall not be open to the public under the Mississippi Public Records Act of 1983, but only to the parties satisfying the commission of their interest in such records and the right to inspect them. Under such reasonable rules and regulations as the commission may adopt, the records of the commission as to any employee in any previous case in which such employee was a claimant shall be open to and made available to such claim to an employer or its insurance carrier which is called upon to pay compensation, medical expenses and/or funeral expenses, or to any party at interest, except that the commission may make such reasonable charge as it deems proper for furnishing information by mail and for copies of records.
§ 71-3-67
(1) Within ten (10) days after the fatal termination of any injury, the employer, if self-insured, or its carrier, shall file a report thereof with the commission on a form approved by the commission for this purpose.
In the event of an injury which shall cause loss of time in excess of the waiting period prescribed in Section 71-3-11, a report thereof shall be filed with the commission by the employer or carrier, on a form approved by the commission for this purpose, within ten (10) days after the prescribed waiting period has been satisfied.
Within ten (10) days after the employer or carrier knows, or reasonably should know, that an injury has resulted, or likely will result, in permanent disability or serious head or facial disfigurement, but which does not cause a loss of time in excess of the prescribed waiting period, a report thereof shall be filed with the commission on a form approved by the commission for this purpose.
(2) Injuries not otherwise provided for in this section, and for which only medical benefits are due, are not required to be reported to the commission. Records of such injuries shall be maintained by the employer, if self-insured, or its carrier, and shall contain the name and address of the employee, the date of the accident, the name and address of the employer, the nature of the injury, the number of days lost and the total medical expense. These records shall be made available to the commission upon request.
If an injury provided for in this subsection subsequently causes a loss of time in excess of the prescribed waiting period, or causes permanent disability or serious head or facial disfigurement, it shall be reported within ten (10) days thereafter on the form approved for such claims.
Any additional reports shall be sent to the commission in such time and in such manner as the commission may prescribe.
(3) Filing may be by mail, electronic means or other form of delivery reasonably calculated to accomplish receipt by the commission. Any such report required to be filed hereunder shall be considered filed on the date of mailing, if filing is by mail, and on the date the electronic equipment being used acknowledges receipt of the material, if filing is by electronic means. Otherwise, the date of filing shall be the date of receipt by the commission.
(4) Whenever an employer or carrier fails or refuses to file any report required by this section within the time prescribed, the commission may, in its discretion, and after giving the employer or carrier notice and an opportunity to show cause to the contrary, levy a penalty against such employer or carrier not to exceed One Hundred Dollars ($100.00). This penalty shall be payable to the Administrative Expense Fund provided for by this chapter, and if not voluntarily paid, may be collected by civil suit brought by the commission.
In addition to the above civil penalty, a sum not to exceed One Hundred Dollars ($100.00) may, in the discretion of an administrative judge or the commission, be added to any award which may be made as a result of any injury not timely reported hereunder.
§ 71-3-69
Any person who willfully makes any false or misleading statement or representation for the purpose of obtaining or wrongfully withholding any benefit or payment under this chapter is guilty of a felony and on conviction thereof may be punished by a fine of not to exceed Five Thousand Dollars ($5,000.00) or double the value of the fraud, whichever is greater, or by imprisonment not to exceed three (3) years, or by both fine and imprisonment.
§ 71-3-71
The acceptance of compensation benefits from or the making of a claim for compensation against an employer or insurer for the injury or death of an employee shall not affect the right of the employee or his dependents to sue any other party at law for such injury or death, but the employer or his insurer shall be entitled to reasonable notice and opportunity to join in any such action or may intervene therein. If such employer or insurer join in such action, they shall be entitled to repayment of the amount paid by them as compensation and medical expenses from the net proceeds of such action (after deducting the reasonable costs of collection) as hereinafter provided.
The commencement of an action by an employee or his dependents (or legal representative) against a third party for damages by reason of the injury, or the adjustment of any such claim, shall not affect the right of the injured employee or his dependents (or legal representative) to recover compensation, but any amount recovered by the injured employee or his dependents (or legal representative) from a third party shall be applied as follows: reasonable costs of collection as approved and allowed by the court in which such action is pending, or by the commission of this state in case of settlement without suit, shall be deducted; the remainder, or so much thereof as is necessary, shall be used to discharge the legal liability of the employer or insurer; and any excess shall belong to the injured employee or his dependents. The employee or his dependents bringing suit against the third party must notify the employer or carrier within fifteen (15) days of the filing of such suit.
An employer or compensation insurer who shall have paid compensation benefits under this chapter for the injury or death of the employee shall have the right to maintain an action at law against any other party responsible for such injury or death, in the name of such injured employee or his beneficiaries, or in the name of such employer or insurer, or any or all of them. If reasonable notice and opportunity to be represented in such action by counsel shall have been given to the compensation beneficiary, all claims of such compensation beneficiary shall be determined in such action, as well as the claim of the employer or insurer. If recovery shall be had against such other party, by suit or otherwise, the compensation beneficiary shall be entitled to any amount recovered over and above the amount that the employer and insurer shall have paid or are liable for in compensation or other benefits, after deducting the reasonable costs of collection.
In case of settlement of any action before the trial thereof, such settlement shall be subject to the approval of the court wherein such action is pending, and settlement before an action is brought shall be subject to the approval of the commission. Distribution of the portion belonging to the dependents shall be made among such dependents in the manner provided in this chapter.
In case of liability of the employer or insurer to make payment to the state treasury under the second injury fund provisions, if the injury or death creates a legal liability against a third party, the employer or insurer shall have a right of action against such third party for reimbursement of any sum so paid into the state treasury, which right may be enforced in the action heretofore provided or by an independent action.
§ 71-3-73
(1) If an employee who has previously lost, or lost the use of, one (1) hand, one (1) arm, one (1) foot, one (1) leg, or one (1) eye, becomes permanently and totally incapacitated through the loss, or loss of use, of another member or organ, the employer shall be liable only for the compensation payable for such second injury. In addition to such compensation and after the completion of the payment therefor, the employee shall be paid the remainder of the compensation that would be due for permanent total incapacity, out of a special fund known as the “Second Injury Trust Fund,” and created for such purpose in the following manner:
In every case of compensable death of an employee under this chapter, the employer or, if insured, his insurance carrier shall pay to the commission the sum of Three Hundred Dollars ($300.00) except in cases where there is no dependency, then there shall be paid to the commission the sum of Five Hundred Dollars ($500.00) to be deposited with the State Treasurer for the benefit of said fund. A suspension of said payments of Three Hundred Dollars ($300.00) per death shall be made when the total amount of all such payments, together with the accumulated interest thereon, equals or exceeds Three Hundred Fifty Thousand Dollars ($350,000.00), and no further contributions to said fund shall be made except in cases where there is no dependency. Whenever, thereafter, the amount of such sum shall be reduced below One Hundred Fifty Thousand Dollars ($150,000.00) by reason of payments made pursuant to this section, then such contributions of Three Hundred Dollars ($300.00) per death shall be resumed forthwith and shall continue until such sum, together with accumulated interest thereon, shall again amount to Three Hundred Fifty Thousand Dollars ($350,000.00); and the commission shall direct the distribution thereof.
(2) During fiscal year 2017 and thereafter, the Workers' Compensation Commission shall have full authority to assess employers or insurers the amounts provided in this section for deposit into the Second Injury Trust Fund, however, such funds shall not be used for the support of the agency.
§ 71-3-75
(1) Insurance of liability : An employer liable under this chapter to pay compensation shall insure payment of such compensation by a carrier authorized to insure such liability in this state unless such employer shall be exempted from doing so by the commission.
(2) Exemption from insuring : An employer desiring to be exempt from insuring its liability for compensation shall make application to the commission, showing its financial ability to pay such compensation and agreeing as a condition for the granting of the exemption to faithfully report all injuries under compensation according to law and the requirement of the commission, and to comply with the provisions of this chapter and the rules of the commission pertaining to the administration thereof; whereupon the commission by written order may make such exemption. The commission may from time to time require further statement of financial ability of such employer to pay compensation and may, upon ten (10) days' notice in writing, for financial reasons or for failure of the employer to faithfully discharge its obligations according to the agreements contained in its application for exemption, revoke the order granting such exemption, in which case such employer shall immediately insure its liability as otherwise required under this chapter. As a condition for the granting of an exemption, the commission shall have authority to require the employer to furnish such security as the commission may consider sufficient to insure payment of all claims of such employer under compensation. State agencies qualified as self-insured status shall not be required to furnish any security to insure or guarantee payment of claims or expenses and shall not be required to establish and maintain reserves for claims incurred but not reported and expenses associated therewith, as a condition for the granting or continuation of an exemption as herein provided. Where the security is in the form of a bond or other personal guaranty, the commission may, at any time either before or after the entry of an award upon at least ten (10) days' notice and opportunity to be heard, require the sureties to pay the amount of the award, the same to be enforced in like manner as the award itself may be enforced. Where an employer procures an exemption as herein provided and thereafter enters into any form of agreement for insurance coverage with an insurance company or interinsurer not licensed to operate in this state, its conduct shall automatically operate as a revocation of such exemption. An order exempting an employer from insuring its liability for compensation shall be null and void if the application contains a financial statement which is false in any material respect. The commission shall revoke the self-insurance permit if the employer is found to have directly or indirectly induced an employee to forego his right to workers' compensation benefits.
(3) Pooling of liabilities : The commission may, under such rules and regulations as it prescribes, permit two (2) or more employers engaged in a common type of business activity or pursuit, or having other reasons to associate, to enter into agreements to pool their liabilities under this section for the purpose of qualifying as group self-insurers, and, in conjunction therewith, to enter into agreements to pool any other liabilities to their employees, and each employer member of such approved group shall be classified as a self-insurer. A self-insured group under this section shall be comprised of employer members of the same bona fide trade association or trade group. Such trade association or trade group shall be domiciled in the State of Mississippi, shall have been in existence for five (5) or more consecutive years as of the date of application for an approved group and shall not be comprised solely of employer members who are affiliates of a person possessing controlling interest in such affiliates.
§ 71-3-77
(1) Every contract for the insurance of the compensation herein provided, or against liability therefor, shall be deemed to be made subject to the provisions of this chapter, and provisions thereof inconsistent with this chapter shall be void. Such contract shall be allowed to offer deductibles on all liability of the assured under and according to the provisions of this chapter, notwithstanding any agreement of the parties to the contrary. However, the payments of the claims, including the deductible amounts, shall be made directly from the insurance company to the employee, except for medical benefits which shall be paid to the medical provider. A copy of such payments shall be forwarded to the employer. The insurance company shall collect the deductible from the employer as shall be provided in the contract between the employer and the insurer. No such policy shall be subject to nonrenewal, or cancelled by the insurer within the policy period, until a notice in writing shall be given to the commission and to the insured, fixing the date on which it is proposed to cancel it or declaring that the company does not intend to renew the policy upon expiration date. Notice to the insured shall be served personally or by registered or certified mail. Notice to the commission shall be provided in such manner and on such form as the commission may prescribe or direct. No such cancellation or nonrenewal shall be effective until thirty (30) days after the service of such notice on the insured and the provision of notice to the commission, unless the employer has obtained other insurance coverage, in which case such policy shall be deemed cancelled as of the effective date of such other insurance, whether or not such notice has been given. The notice requirements of this section shall not apply when a replacement policy form providing the same or substantially similar coverage is issued by the same insurer, or when transfer of an insured to a licensed affiliate providing the same or substantially similar coverage occurs. Whenever a replacement policy form providing the same or substantially similar coverage is issued by the same insurer, or when a transfer of an insured to a licensed affiliate of the insurer providing the same or substantially similar coverage occurs, documents signed by the insured are applicable to the replacement policy and to coverage being transferred, and remain valid and enforceable.
The insured may also cancel such a policy on the day that the insured either (a) returns the policy to the agent, or (b) signs and delivers to the agent a “lost policy release.” If the insured desires to cancel a policy before the policy has become effective, he may cancel the policy by written notice of cancellation to the agent or company without return of the policy or a release.
Whenever a replacement policy form providing the same or substantially similar coverage is issued by the same insurer, or by a licensed affiliate insurer, such insurer shall mail or deliver to the policyholder, at least thirty (30) days in advance of the effective date of renewal, written notice of any terms or conditions that are less favorable to the policyholder.
A transferring insurer shall notify the Mississippi Insurance Department and the Mississippi Workers' Compensation Commission at least forty-five (45) days in advance of notifying a policyholder that its personal or commercial lines insurance policies will be transferred to another licensed insurer within the same insurance group or same holding company. The notice shall include the name of insurer transferring the personal or commercial lines policies and the name and financial rating of the insurer receiving the transferred personal or commercial lines policies.
A transferring insurer shall provide the policyholder written notice of the policy transfer at least thirty (30) days prior to expiration of the policy term and shall include the financial rating of the insurer receiving the transferred policy. Such notice must be provided to the policyholder with the notice of renewal premium at least thirty (30) days before the effective date of the transfer.
(2) In any case where the employer is not a self-insurer, in order that the liability for compensation imposed by this chapter may be most effectively discharged by the employer and in order that the administration of this chapter in respect of such liability may be facilitated, the commission shall by regulation provide for the discharge, by the carrier or carriers for such employer, of such obligations and duties of the employer in respect of such liability imposed by this chapter upon the employer as it considers proper in order to effectuate the provisions of this chapter. For such purpose (a) notice to or knowledge of an employer of the occurrence of the injury shall be notice to or knowledge of the carrier or carriers; (b) jurisdiction of the employer by the commission or any court under this chapter shall be jurisdiction of the carrier or carriers; and (c) any requirement by the commission or any court under any compensation order, finding, or decision shall be binding upon the carrier or carriers in the same manner and to the same extent as upon the employer.
(3) As used in this section:
(a) “Affiliate transfer” is when an insurer transfers, at renewal or policy expiration, its personal or commercial lines insurance policies to an affiliated licensed insurer that is a member of the same insurance group or same holding company as the transferring insurer. The issuance of a replacement policy form providing the same or substantially similar coverage issued by the same insurer, or the transfer of personal or commercial insurance policies to a licensed affiliate insurer that will issue the same or substantially similar policy, are considered a renewal and will not be treated as a cancellation or nonrenewal. The affiliate transfer must be to a licensed affiliate insurer that has been determined by the commissioner to have the same or better financial strength as the transferring insurer. The policy transfer must be selected on a nondiscriminatory basis.
(b) “Substantially similar” means a policy that provides the same basic coverages but may add, alter or eliminate incidental coverages and may provide coverages using different textual language.
§ 71-3-79
Acceptance of a premium on a policy securing to an employee compensation, either alone or in connection with other insurance, shall estop the carrier so accepting from pleading that the employment of such employee is not covered under this chapter or that the employment is not carried on for pecuniary gain.
When any member of a partnership, firm, or association who does or does not perform manual labor, and where there is coverage of fellow employees, elects to take coverage under the provisions of this chapter, the intent of the insured as well as acceptance by the carrier shall be shown by endorsement to the policy. Any such affirmative action by the parties shall entitle said members or officers to the benefits enjoyed by an employee under this chapter. Every executive officer elected or appointed and empowered in accordance with a charter and bylaws of a corporation, other than nonprofit charitable, fraternal, cultural, or religious corporations or associations, shall be an employee of such corporation under this chapter, provided that said executive officer may reject said coverage by giving notice in writing to the carrier of this election not to be covered as an employee.
Any such executive officer of a nonprofit charitable, fraternal, cultural, or religious corporation or association may, notwithstanding any other provision of this chapter, be brought within the coverage of its insurance contract by any such corporation or association by specifically including such executive officer in such contract of insurance. The election to bring such executive officer within the coverage shall continue for the period such contract of insurance is in effect, and during such period such executive officers thus brought within the coverage of the insurance contract shall be employees of such corporation or association under this chapter.
§ 71-3-81
Every employer who has secured compensation under the provisions of this chapter shall keep notices posted in a conspicuous place or places in and about his place or places of business, in accordance with a form prescribed by the commission, stating that such employer has secured the payment of compensation in accordance with the provisions of this chapter. Such notices shall contain the name and address of the carrier, if any, with whom the employer has secured payment of the compensation and the date of the expiration of the policy.
§ 71-3-83
(1) Any employer required to secure the payment of compensation under this chapter who fails to secure such compensation is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00), or by imprisonment for not more than one (1) year, or by both such fine and imprisonment. If the employer is a corporation, the president, secretary and treasurer thereof shall be also severally liable to such fine or imprisonment as herein provided for the failure of such corporation to secure the payment of compensation; and such president, secretary and treasurer shall be severally personally liable, jointly with such corporation, for any compensation or other benefit which may accrue under this chapter in respect to any injury which may occur to any employee of such corporation while it shall so fail to secure the payment of compensation as required by this chapter.
(2) Any uninsured employer who knowingly transfers, sells, encumbers, assigns, or in any manner disposes of, conceals, secretes or destroys any property belonging to such employer after one of his employees has been injured within the purview of this chapter, and with intent to avoid the payment of compensation under this chapter to such employee or his dependents, is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00), or by imprisonment for not more than one (1) year, or by both such fine and imprisonment. If the employer is a corporation, the president, secretary and treasurer thereof shall be also severally liable to such penalty of imprisonment as well as jointly liable with such corporation for such fine.
(3) This section shall not affect any other liability of the employer under this chapter.
(4) In addition to the criminal penalties set forth above, and under the same circumstances, terms and conditions as set forth in subsections (1) and (2), the commission may assess a civil penalty in an amount to be determined by the commission on a case by case basis, but not to exceed Ten Thousand Dollars ($10,000.00). Any civil penalty levied and collected by the commission shall be deposited into the Administrative Expense Fund provided for in Section 71-3-97, and any penalty not voluntarily paid may be collected by civil suit brought by the commission.
§ 71-3-85
(1) There is hereby created a commission to be known as the workmen's compensation commission, consisting of three (3) members, who shall devote their entire time to the duties of the office. The governor shall appoint the members of the commission, by and with the consent of the Mississippi State Senate, one (1) for a term of two (2) years, one (1) for a term of four (4) years, and one (1) for a term of six (6) years. Upon the expiration of each term as above set forth, the governor shall appoint a successor for a term of six (6) years, and thereafter the term of office of each commissioner shall be for six (6) years. One (1) member shall be a person who by reason of his previous vocation or affiliation can be classed as a representative of employers, and one (1) member shall be a person who by reason of his previous vocation or affiliation can be classed as a representative of employees. One (1) member shall be an attorney at law of recognized ability with at least five (5) years' active practice in Mississippi prior to his appointment. The governor shall designate the chairman of the commission, whose term of chairman shall run concurrently with his appointment as a commissioner.
The chairman shall be the administrative head of the commission and shall have the final authority in all matters relating to assignment of cases for hearing and trial and the administrative work of the commission and its employees, except in the promulgation of rules and regulations wherein the commission shall act as a body, and in the trial and determination of cases as otherwise provided.
Upon the expiration of the term of a commissioner, he shall continue to serve until his successor has been appointed. Because cumulative experience is conspicuously essential to the proper administration of a workmen's compensation law, it is declared to be in the public interest to continue workmen's compensation commissioners in office as long as efficiency is demonstrated. A commissioner may be removed for cause prior to the expiration of his term, but shall be furnished a written copy of the charges against him and shall be accorded a public hearing.
Each member of the commission and each administrative law judge shall receive an annual salary fixed by the legislature.
(2) A vacancy in the commission, if there remain two (2) members of it, shall not impair the authority of such two (2) members to act. In case of illness or continued absence for other reasons, the same authority of such two (2) members shall apply.
(3) The commission shall have the powers and duties necessary for effecting the purposes of this chapter, including the powers of a court of record for compelling the attendance of witnesses, examining them under oath, and compelling the production of books, papers, documents and objects relevant to the determination of a claim for compensation, and the power to adopt rules and regulations and make or approve the forms relating to notices of injuries, payment of claims and other purposes. The authority of the commission and its duly authorized representatives to investigate and determine claims for compensation shall include the right to enter the premises where an injury occurred, to ascertain its causes and circumstances.
(4) The office of the commission shall be situated in the City of Jackson, but hearings may be held at such places as it may deem most convenient for the proper and speedy performance of its duties. The commission is authorized, if it deems it necessary for the convenient and efficient dispatch of business, to lease office space and facilities in other than publicly owned buildings.
(5) The commission shall adopt detailed rules and regulations for implementing the purposes of this chapter at hearings attended by the main parties interested. Such rules, upon adoption, shall be published and be at all reasonable times made available to the public and, if not inconsistent with law, shall be binding upon those participating in the responsibilities and benefits of the workmen's compensation law.
(6) The commission shall adopt or approve the forms required for administering the chapter, such notices of injury, application for benefits, receipts for compensation and all other forms needed to assure the orderly and prompt operation of the law, and may require the exclusive use of any or all such approved forms.
§ 71-3-87
Members of the commission shall give bond in the sum of ten thousand dollars ($10,000.00) of a surety company authorized to do business in the state, for the faithful performance of their duties. The premium upon such bonds shall be paid out of the workmen's compensation administration fund.
§ 71-3-89
The commission shall have a seal for authentication of its orders, awards, and proceedings, upon which shall be inscribed the words “workmen's compensation commission-Mississippi-seal,” and it shall be judicially noticed.
§ 71-3-91
Commissioners and employees of the commission shall receive their necessary traveling expenses and costs of subsistence while traveling on official business and away from their designated station. Expense accounts shall be sworn to by the person presenting them and, upon approval by the chairman of the commission, shall be allowed and paid as provided in Section 71-3-97.
§ 71-3-93
The commission shall appoint such officers and employees as are necessary adequately to administer the Workers' Compensation Law, including not more than eight (8) administrative judges to be appointed by the commission with the consent of the Governor and an executive director who shall serve at the will of the commission and shall have such administrative duties as are assigned by the commission, a secretary, a statistician, a rehabilitation unit, and any other employees deemed essential to the administration of the law including court reporters whose salaries shall be the same as set for court reporters for circuit and chancery courts by Section 9-13-19. The annual salary of the executive director shall be equal to that of an administrative judge. An administrative judge shall be a member of the Mississippi State Bar and shall have a minimum of three (3) years' experience in the practice of law.
All salaries not specifically fixed by law shall be set by the commission. The establishing of a merit system or career service for employees of the commission is declared to be in the public interest because of the length of time required for understanding the details and problems involved in administering this legislation. The commission shall establish and enforce fair and reasonable rules for the appointment, promotion and demotion of personnel. All employees of the commission with the exception of medical consultants shall devote their entire time to the duties of their office.
For the purpose of conducting hearings and making decisions upon claims, the administrative judge or administrative judges appointed by the commission shall have the authority of a commissioner.
§ 71-3-95
(1) The commission shall make such expenditures as may be necessary for the adequate administration of this chapter, including salaries and traveling expense, the cost of personal services, office rent at the seat of government and elsewhere, the purchase of books, periodicals, office equipment and supplies, printing and binding reports, the cost of membership in official organizations, and other purposes. All expenditures of the commission in the administration of this chapter shall be allowed and paid out of the State General Fund as provided in Section 71-3-100, upon the presentation of itemized vouchers therefor approved by the chairman of the commission.
(2) The commission is authorized, in its discretion, to transfer a sum or sums not to exceed Two Hundred Thousand Dollars ($200,000.00) to the Second Injury Fund. The commission is further authorized, in its discretion, to replace any funds so transferred in the event that funds become available.
§ 71-3-97
All civil penalties provided in this chapter, if not voluntarily paid, may be collected by civil suit brought by the commission, and shall be paid into the State General Fund.
§ 71-3-99
(1) The commission shall estimate annually in advance the amounts necessary for the administration of this chapter, in the following manner:
(a) The commission shall, as soon as practicable after the first day of January in each year, determine the expense of administration of this chapter for the one-year period preceding the first day of January. The expense of administration for such period shall be used as the basis for determining the amount to be assessed against each carrier and self-insurer in order to provide for the expenses of the administration of this chapter for the one-year period.
(b) Each carrier and self-insurer shall be assessed Two Hundred Fifty Dollars ($250.00). The proceeds of such assessment shall be deducted from the estimate of total expenses and the remaining expenses of administration shall be prorated among the carriers writing compensation insurance in the state and self-insurers. The gross claims for compensation and medical services and supplies paid by the insurance carriers and self-insurers is the basis for computing the amount to be assessed, in the proportion that the total gross claims for compensation and medical services and supplies paid by such carrier or self-insurer during the preceding one-year period bore to the total gross claims for compensation and medical supplies and services paid by all carriers and self-insurers during such period. This amount may be assessed as a specific amount or as a percentage of gross claims for compensation and medical supplies and services paid by the insurance carriers and self-insurers as the commission may direct, and shall be such amount as shall be reasonably necessary to defray the necessary expense of such administration.
(2) The commission shall provide by regulation for the collection of the amounts assessed against each carrier and self-insurer. Such amounts shall be paid within thirty (30) days from the date that notice is served upon such carrier. If such amounts are not paid within such period, there may be assessed, for each thirty (30) days the amount so assessed remains unpaid, a civil penalty equal to ten percent (10%) of the amount so unpaid, which shall be collected at the same time and as a part of the amount assessed.
(3) If any carrier or self-insurer fails to pay the amounts assessed against it under the provisions of this section within sixty (60) days from the time such notice is served, the commission may suspend or revoke the authorization to insure compensation or to be self-insured.
(4) All amounts collected under the provisions of this section shall be paid into the State General Fund as provided in Section 71-3-100.
(5) The commission may require from each carrier and self-insurer, at such time and in accordance with regulations as the commission may prescribe, reports in respect to all payments of compensation and medical supplies and services by such carriers or self-insurers during each prior period, and may determine the amounts paid by each carrier and self-insurer and the amounts paid by all carriers and self-insurers during such period.
(6) Every carrier and self-insurer shall file with the commission on or before the first day of March of each year, a statement on the prescribed forms showing the gross claims for compensation and medical services and supplies paid by such carrier or self-insurer during the preceding one-year period ending on the thirty-first day of December. Any carrier or self-insurer which neglects to make and file its annual written statement within the time provided in this chapter shall pay to the commission Twenty Dollars ($20.00) for each day's neglect.
§ 71-3-100
All funds received by the Workers' Compensation Commission, as established by Section 71-3-85 et seq., shall be paid to the State Treasurer, who shall issue receipts therefor and who shall deposit such funds into the State General Fund in the State Treasury.
From and after July 1, 2016, the expenses of the Workers' Compensation Commission shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized by Section 71-3-85 et seq. shall be deposited into the State General Fund as authorized by law.
From and after July 1, 2016, the Workers' Compensation Commission shall not charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of Section 71-3-85 et seq.
§ 71-3-101
Each insurance company and all other carriers which desire to write workmen's compensation insurance in compliance with this chapter shall be required, before writing such insurance, to register with the workmen's compensation commission and pay a registration fee of one hundred dollars ($100.00). This shall be deposited by the commission in the administration expense fund.
§ 71-3-103
The commission shall each calendar year make a report to the governor upon the operation of this chapter, including suggestions and recommendations as to improvements in the law and administration, a detailed statement of receipts and disbursements, and an exposition of industrial injury experience and compensation and medical cost.
§ 71-3-105
The commission shall cooperate with federal, state, and local agencies in the rehabilitation of handicapped workers, and shall promptly report to the proper authority industrial injury cases in which retraining or job placement may be needed.
§ 71-3-107
Compensation and death benefits shall be double the amount otherwise payable if the injured employee at the time of the injury is a minor under eighteen (18) years of age employed, permitted, or suffered to work in violation of any provision of the Mississippi labor laws. The employer alone and not the insurance carrier shall be liable for such increased compensation or increased death benefits. Any provision in an insurance policy undertaking to relieve an employer from such increased liability shall be void. The provisions of this section shall not apply, and double compensation and double death benefits shall not be payable, for death or injury to an employee under eighteen (18) years of age employed in the following programs:
(a) Students fourteen (14) years of age and over and regularly enrolled in an accredited secondary school or college and employed between regular terms or semesters with the written consent of their parent or parents or person standing in loco parentis.
(b) Students fourteen (14) years of age and over and employed in on-the-job training as a part of a regular program of education in an accredited secondary school with the written consent of their parent or parents or person standing in loco parentis.
§ 71-3-109
(1) If an employee who has been hired or is regularly employed in this state receives personal injury by accident arising out of and in the course of his employment while temporarily employed outside of this state, he or his dependents in case of his death shall be entitled to compensation according to the law of this state. This provision shall apply only to those injuries received by the employee within six (6) months after leaving this state unless, prior to the expiration of such six (6) months' period, the employer has filed with the commission of Mississippi notice that he has elected to extend such coverage a greater period of time.
(2) The provisions of this section shall not apply to an employee whose departure from this state is caused by a permanent assignment or transfer.
(3) Any employee who has been hired or is regularly employed outside of this state and his employer shall be exempted from the provisions of this chapter while such employee is temporarily within this state doing work for his employer if such employer has furnished workmen's compensation insurance coverage under the workmen's compensation or similar laws for a state other than this state so as to cover such employee's employment while in this state, provided the extra-territorial provisions of this chapter are recognized in such other state and provided employers and employees who are covered in this state are likewise exempted from the application of the workmen's compensation or similar laws of such other state. The benefits under the workmen's compensation or similar laws of such other state shall be the exclusive remedy against such employer for any injury, whether resulting in death or not, received by such employee while working for such employer in this state.
§ 71-3-111
(1) The Department of Insurance is directed to promulgate such rules and regulations as will enable the department to provide the “Mississippi Workers' Compensation Assigned Risk Plan” for the assignment of risks which in good faith are entitled to insurance under this chapter but which, because of unusual conditions and circumstances, are unable to obtain such insurance.
(2) The Commissioner of Insurance is designated as the Director of the Mississippi Workers' Compensation Assigned Risk Plan, and he shall design the assigned risk plan in such a manner that the plan should become self-supporting with no outside assessments. The commissioner may contract for a safety program.
(3) The Commissioner of Insurance is authorized to advertise and contract with any workers' compensation insurance carriers that are licensed and writing workers' compensation insurance within the State of Mississippi or providers of workers' compensation claims and loss control services within the State of Mississippi to be servicing carriers. A servicing carrier shall provide all insurance services to employers insured under the plan as are otherwise rendered to those covered by policies voluntarily written by companies licensed to write workers' compensation insurance in the state.
(4) The Commissioner of Insurance may establish the “Mississippi Workers' Compensation Assigned Risk Pool” as a reinsurance mechanism for the “Mississippi Workers' Compensation Assigned Risk Plan” to accomplish the equitable distribution of all underwriting profit or loss of the plan to the companies licensed to write workers' compensation insurance in the state in direct proportion to their share of the total voluntary workers' compensation premiums written in the state. If established, all insurance companies licensed to write workers' compensation insurance under this chapter shall be members of and participants in this pool.
(5) The Commissioner of Insurance shall be responsible for the administration of both the “Mississippi Workers' Compensation Assigned Risk Plan” and the “Mississippi Workers' Compensation Assigned Risk Pool” but may designate an administrator of either or both, at his discretion. The Commissioner of Insurance may levy special assessments against the Mississippi Workers' Compensation Assigned Risk Pool, if necessary, to provide funding for administrative expenses.
(6) The commissioner is hereby authorized to establish a temporary joint underwriting association that shall consist of all insurers authorized to write, or engaged in writing, within this state on any basis, workers' compensation insurance as reported in the companies' annual statements.
The purpose of the association shall be to provide a market for workers' compensation insurance on a self-supporting basis.
The association shall not be established nor begin underwriting operations until the commissioner, after due hearing and investigation, has determined that workers' compensation insurance is not readily available. A determination that such insurance is not readily available shall be necessary before the association begins operations.
Upon such determination, the association shall be authorized to issue policies of workers' compensation insurance.
If the commissioner determines at any time that workers' compensation insurance can be made readily available in the voluntary market, the association shall then cease its underwriting operations for such workers' compensation insurance that has been determined to be available in the voluntary market.
The Commissioner of Insurance is authorized to promulgate rules and regulations to effectuate the purposes of this section, to include levying assessments, if necessary, to provide funding for start-up and administrative expenses.
§ 71-3-115
(1) The Mississippi Workers' Compensation Commission shall appoint a medical advisory board to serve in an advisory capacity to study the possibility of the use of a medical fee schedule and to provide assistance to the commission in the performance of its functions relating to regulation of medical fees and charges pursuant to Section 71-3-15(3), Mississippi Code of 1972.
(2) Such board shall consist of five (5) members, one (1) appointed from each congressional district as they existed on January 1, 1985. Members of the board shall serve at the will and pleasure of the commission. All members of the medical advisory board shall be health care providers.
(3) Such board shall meet upon the call of the chairman of the Mississippi Workers' Compensation Commission. The board shall receive per diem and mileage as authorized by Section 25-3-69, Mississippi Code of 1972, for attendance at called meetings to be paid from the administrative expense fund as provided in Section 71-3-97, Mississippi Code of 1972.
(4) The Mississippi Workers' Compensation Commission shall provide all office space and clerical assistance that might be required by the board.
(5) The Workers' Compensation Commission shall file a report with the Secretary of the Senate and the Clerk of the House of Representatives not later than December 15, 1987, concerning the result of the medical fee schedule study, together with any recommendations that the commission may consider necessary in regard to the regulation of medical fees and other costs. Such report shall contain any available comparative data generated by the commission or the medical advisory board.
§ 71-3-117
(1) The Mississippi Workers' Compensation Commission is hereby authorized and directed to review and make recommendations to the Legislature concerning alternative systems of workers' compensation for the State of Mississippi. The commission shall evaluate (a) the feasibility of group self-insurance and a self-insurance guarantee fund; (b) the deregulation of compensation insurance rates, including the impact of reserving practices, return on investments and profitability on workers' compensation ratemaking; (c) structural alternatives, such as the utilization of a state fund to operate the compensation system; and (d) the provisions of vocational rehabilitation services for covered employees. The Mississippi Department of Insurance shall cooperate and assist the Workers' Compensation Commission in preparing its recommendations.
(2) The Mississippi Workers' Compensation Commission may employ an actuary and such other staff as may be required to properly conduct this study. The expense of this study shall be paid from the administrative expense fund as provided in Section 71-3-97, Mississippi Code of 1972.
(3) The Mississippi Workers' Compensation Commission shall file its report with the Clerk of the House of Representatives and the Secretary of the Senate, together with recommendations for legislation, no later than December 15, 1987, with respect to the subject matter set forth in paragraphs (1)(a) and (1)(d) and no later than November 1, 1988, with respect to the subject matter set forth in paragraphs (1)(b) and (1)(c).
§ 71-3-119
(1) There is hereby created the Mississippi Workers' Compensation Advisory Council composed of individuals who, by their practice, experience and expertise, reflect the general composition of those involved with the workers' compensation field. The council shall consist of not more than twenty-five (25) members excluding the members of the Mississippi Workers' Compensation Commission, who shall be ex officio members. The members of such council shall be appointed by the Mississippi Workers' Compensation Commission within thirty (30) days of March 19, 1987 to a one-year term or until their successors are appointed and qualified. The members of the council shall select one of their number to be chairman. The advisory council shall consider and advise the Mississippi Workers' Compensation Commission on all matters related to the administration of the Mississippi Workers' Compensation Law. In its discretion the council may recommend to the Mississippi Workers' Compensation Commission changes it deems needed in the substance and administration of the Mississippi Workers' Compensation Law. The council shall report periodically to the Mississippi Workers' Compensation Commission regarding the performance of its duties and functions.
(2) The members of the advisory council shall receive the per diem under Section 25-3-69 for attendance of meetings of the council and shall be reimbursed for actual and necessary mileage and travel expenses incurred in the discharge of their duties pursuant to Section 25-3-41. The Mississippi Workers' Compensation Commission may provide personnel to aid the council in the performance of its functions. The amounts allowed to the members of the council for per diem compensation, travel and other council expenses is an expense incurred in the administration of the Mississippi Workers' Compensation Law.
§ 71-3-121
(1) In the event that an employee sustains an injury at work or asserts a work-related injury, the employer shall have the right to administer drug and alcohol testing or require that the employee submit himself to drug and alcohol testing. If the employee has a positive test indicating the presence, at the time of injury, of any drug illegally used or the use of a valid prescription medication(s) taken contrary to the prescriber's instructions and/or contrary to label warnings, or the use of medical cannabis in accordance with the Mississippi Medical Cannabis Act and rules and regulations adopted thereunder, or eight one-hundredths percent (.08%) or more by weight volume of alcohol in the person's blood, it shall be presumed that the proximate cause of the injury was the use of a drug illegally, or the use of a valid prescription medication(s) taken contrary to the prescriber's instructions and/or contrary to label warnings, or the use of medical cannabis in accordance with the Mississippi Medical Cannabis Act and rules and regulations adopted thereunder, or the intoxication due to the use of alcohol by the employee. If the employee refuses to submit himself to drug and alcohol testing immediately after the alleged work-related injury, then it shall be presumed that the employee was using a drug illegally, or was using a valid prescription medication(s) contrary to the prescriber's instructions and/or contrary to label warnings, or the use of medical cannabis in accordance with the Mississippi Medical Cannabis Act and rules and regulations adopted thereunder, or was intoxicated due to the use of alcohol at the time of the accident and that the proximate cause of the injury was the use of a drug illegally, or the use of a valid prescription medication(s) taken contrary to the prescriber's instructions and/or contrary to label warnings, or the use of medical cannabis in accordance with the Mississippi Medical Cannabis Act and rules and regulations adopted thereunder, or the intoxication due to the use of alcohol of the employee. The burden of proof will then be placed upon the employee to prove that the use of drugs illegally, or the use of a valid prescription medication(s) taken contrary to the prescriber's instructions and/or contrary to label warnings, or the use of medical cannabis in accordance with the Mississippi Medical Cannabis Act and rules and regulations adopted thereunder, or intoxication due to the use of alcohol was not a contributing cause of the accident in order to defeat the defense of the employer provided under Section 71-3-7.
(2) The results of the drug and alcohol tests, employer-administered or otherwise, shall be considered admissible evidence solely on the issue of causation in the determination of the use of drugs illegally, or the use of a valid prescription medication(s) taken contrary to the prescriber's instructions and/or contrary to label warnings, or the use of medical cannabis in accordance with the Mississippi Medical Cannabis Act and rules and regulations adopted thereunder, or the intoxication due to the use of alcohol of an employee at the time of injury for workers' compensation purposes under Section 71-3-7.
(3) No cause of action for defamation of character, libel, slander or damage to reputation arises in favor of any person against an employer under the provisions of this section.
§ 71-3-123
The Commissioner of Insurance shall submit a report consisting of the condition of the assigned risk plan and the safety programs established by insurers in accordance with Laws, 1992, ch. 577 to the Senate and House Insurance Committees by January 1 of each year, beginning January 1, 1993.
§ 71-3-125
(1) Each insurance carrier or commission approved self-insured employer shall maintain a workers' compensation claims office, subject to the waiver provisions herein, within the borders of the State of Mississippi beginning July 1, 1993. Alternatively, each insurance carrier or commission approved self-insured employer may provide by contract the same services within the borders of the State of Mississippi beginning July 1, 1993. This claims office shall maintain workers' compensation claims files and shall be the office responsible to the Mississippi Workers' Compensation Commission for the proper filing of all commission forms for the employer/insureds. This office shall be the sole contact for the commission for the administration of all claims filed within the jurisdiction of the Mississippi Workers' Compensation Commission. Authority to issue checks and to pay claims shall be vested in personnel located within the State of Mississippi.
The insurance carrier and self-insured employer shall notify the commission of the address of its claims office before July 1, 1992, and shall report any subsequent changes of address before the effective date of the change. After October 1, 1992, no processing or payment of workers' compensation claims shall occur outside the State of Mississippi without the specific written waiver by the commission.
Waiver requests must be submitted to the commission in writing and shall not be considered unless the applicant has exercised claims management and filing practices that illustrate proper compliance with the law and other commission regulations. Proper compliance shall be measured by the commission by continued monitoring of the timeliness of reporting by the carrier/self-insured employer and by monitoring the resolution, or lack thereof, of written complaints regarding noncompliance to all aspects of the Mississippi Workers' Compensation Law and rules of the commission and orders of the administrative law judges, commission or court.
The commission shall prepare a report at least twice each year as to the filing performance, first payment performance and problems resolution of each carrier and self-insured employer during the calendar year beginning January 1, 1993, and each successive year. Carrier's and self-insured employer's performance as measured in each calendar year shall be the basis for approval or continuation of the waiver beginning on July 1 of each successive year.
Any and all waivers previously granted by the commission under prior versions of this section are subject to review under this section in effect at the time the waiver request is submitted for approval or continuation.
(2) Any failure to comply with the provisions of Laws, 1992, Chapter 577, shall subject the carrier/self-insured employer to the sanctions of the Workers' Compensation Law.
§ 71-3-127
The Workers' Compensation Commission may utilize one or more arbitrators to resolve disputes under such procedures as prescribed by the commission in its uniform procedure rules.
§ 71-3-129
(1) The Mississippi Department of Human Services, Division of Child Support Enforcement (the department) or the obligee may cause a lien for unpaid and delinquent child or spousal support to be placed upon any workers' compensation benefits payable to an obligor delinquent in child support or spousal support payments where a minor child is living with such spouse and such maintenance or spousal support is collected in conjunction with child support.
(2) The lien shall be effective upon notice being filed with the Executive Director of the Mississippi Workers' Compensation Commission. The notice shall contain the name and address of the delinquent obligor, the Social Security number of the obligor, if known, the name of the obligee, and the amount of delinquent child or spousal support.
(3) Any person(s), firm(s), corporation(s), including an insurance carrier, making any payment of workers' compensation benefits to such obligor or to his attorney(s), heir(s) or legal representative(s), after receipt of such notice, if support has been assigned to the department pursuant to Section 43-19-31, Mississippi Code of 1972, shall be liable to the obligee. In such event, the lien may be enforced by the department against any person(s), firm(s), corporation(s) making the workers' compensation benefit payment.
(4) Upon the filing of a notice under this section, the Executive Director of the Mississippi Workers' Compensation Commission shall mail to the obligor and to all attorneys and insurance carriers of record, a copy of the notice. The obligor, attorneys and insurance carriers shall be deemed to have received the notice within five (5) days of the mailing of the notice by the Executive Director of the Mississippi Workers' Compensation Commission. The lien described in this section shall attach to all workers' compensation benefits which are thereafter payable.
(5) In cases in which the department is not a party, the obligee or his attorney shall file notice of the lien with such payor as described in subsection (3) above. This notice shall have attached a certified copy of the court order with all modifications and a sworn statement by the obligee attesting to or certifying the amount of the arrearages.
(6) Notice of the lien shall be filed with the Executive Director of the Mississippi Workers' Compensation Commission either by serving a certified copy of the court order by first class mail; or by transmittal of the information described in subsection (2) via automated means.
(7) Any amount deducted and withheld pursuant to subsection (1) shall be paid by the commission to the department.
(8) Any amount deducted and withheld pursuant to subsection (1) shall for all purposes be treated as if it were paid to the individual as benefits and paid by such individual to the department in satisfaction of the individual's child support obligations.
(9) For purposes of this section, the term “benefits” means any compensation payable under this chapter (including amounts payable by the commission pursuant to an agreement under any federal law providing for compensation, assistance or allowances with respect to injury or death).
(10) The department and the Mississippi Workers' Compensation Commission may enter into agreements to carry out the provisions of subsection (6) of this section.
(11) The term “child support obligation” shall be as defined in Section 93-11-101, Mississippi Code of 1972.
§ 71-3-151
Sections 71-3-151 through 71-3-181 shall be known and may be cited as the “Mississippi Workers' Compensation Self-insurer Guaranty Association Law.”
§ 71-3-153
The purpose of Sections 71-3-151 through 71-3-181 is to provide a mechanism for the payment of the covered claims under the Workers' Compensation Law, to avoid excessive delay in payment and to avoid financial loss to claimants because of the insolvency of a self-insurer, to assist in the detection and prevention of self-insurer insolvencies, and to provide associations to assess the cost of such protection among self-insurers.
Sections 71-3-151 through 71-3-181 shall apply to all employers who are self-insurers under the provisions of Section 71-3-75, Mississippi Code of 1972.
§ 71-3-155
Sections 71-3-151 through 71-3-181 shall be liberally construed to effect the purpose under Section 71-3-153, which shall constitute an aid and guide to interpretation.
§ 71-3-157
For the purposes of Sections 71-3-151 through 71-3-181, the following words shall have the meanings ascribed herein unless the context shall otherwise require:
(a) “Individual association” means the Mississippi Workers' Compensation Individual Self-insurer Guaranty Association created under Section 71-3-159.
(b) “Group association” means the Mississippi Workers' Compensation Group Self-insurer Guaranty Association created under Section 71-3-159.
(c) “Commission” means the Mississippi Workers' Compensation Commission.
(d) “Compensation” means amounts payable to claimants under the Mississippi Workers' Compensation Law as defined in Section 71-3-3(j), Mississippi Code of 1972.
(e) “Covered claim” means an unpaid claim upon which compensation or medical is payable by an individual self-insurer or a group self-insurer under the Workers' Compensation Law.
(f) “Self-insurer in default” means an individual self-insurer or a group self-insurer as defined by this chapter that has defaulted or failed for any reason to satisfy any of its obligations under the Workers' Compensation Law, including, without limitation, all obligations for payment of indemnity compensation, disability, expenses of medical, hospital, surgical, rehabilitation and other services, death benefits and funeral expenses, whether such default or failure is the result of insolvency or bankruptcy or receivership or otherwise.
(g) “Member self-insurer” means a self-insurer as defined by this chapter who is a member of the Mississippi Workers' Compensation Individual Self-insurer Guaranty Association or the Mississippi Workers' Compensation Group Self-insurer Guaranty Association.
(h) “Individual self-insurer” is an employer who has been authorized under Section 71-3-75(2), Mississippi Code of 1972, to insure under the Workers' Compensation Law.
(i) “Group self-insurer” is a group of employers who have been authorized under Section 71-3-75(3), Mississippi Code of 1972, to insure under the Workers' Compensation Law.
(j) “Person” means any individual, corporation, partnership, association or voluntary organization.
§ 71-3-159
The Mississippi Workers' Compensation Self-insurer Guaranty Association created under this chapter shall be renamed as the “Mississippi Workers' Compensation Individual Self-insurer Guaranty Association” and there is created a separate nonprofit unincorporated legal entity to be known as the “Mississippi Workers' Compensation Group Self-insurer Guaranty Association.” All individual self-insurers shall be and remain members of the individual association and all group self-insurers shall be and remain members of the group association as a condition of their authority under Section 71-3-75, Mississippi Code of 1972. These associations shall perform their functions under plans of operation established and approved under Section 71-3-165 and shall exercise their powers through boards of directors established under Section 71-3-161. However, any individual or group self-insurer composed of the state, or any agency thereof, or county or municipal governments shall not be required to be members of the individual association or the group association.
§ 71-3-161
(1) The boards of directors of the individual association and the group association shall each consist of not less than five (5) nor more than nine (9) persons, serving terms as established in their plans of operation. The members of each of the boards shall be selected by their respective member self-insurers, subject to the approval of the commission. Vacancies of the boards shall be filled for the remaining period of the term in the same manner as initial appointments.
(2) In approving selections to the boards, the commission shall consider, among other things, whether all member self-insurers of their respective association are fairly represented.
(3) Subject to board approval, members of the boards may be reimbursed from the assets of their respective associations for expenses, including, but not limited to, attorney fees, incurred by them as members of the boards of directors.
§ 71-3-163
(1) Each association shall:
(a) Be obligated to the extent of its covered claims existing prior to the date of default and arising within thirty (30) days after the date of default. In no event shall an association be obligated to a claimant in an amount in excess of the obligation of the defaulting member self-insurer of such association.
(b) Be deemed the self-insurer to the extent of obligations on its covered claims and to such extent shall have all rights, duties and obligations of the individual self-insurer in default or insolvent group self-insurer in default as if such self-insurer were not in default.
(c) Assess its respective individual self-insurers or group self-insurers amounts necessary to pay the obligations of the association under subsection (2) of this section, the expenses of handling covered claims and other expenses authorized by Sections 71-3-151 through 71-3-181. The assessments of each individual self-insurer and each group self-insurer shall be two percent (2%) of the gross paid compensation and medical supplies and services of said member self-insurer during each period of six (6) months. Said two percent (2%) assessment shall be collected by the commission at the same time as and pursuant to the procedures adopted by the commission pursuant to Section 71-3-99, Mississippi Code of 1972. If the obligations of the individual association incurred on or after July 1, 2004, for covered claims arising before July 1, 2004, plus necessary expenses of the individual association incurred on or after July 1, 2004, in evaluating, adjusting, defending or settling such covered claims, exceed the total amount of funds held by the individual association on July 1, 2004, then and to that extent all individual employers and groups of employers who were self-insurers on the dates that the covered claims arose shall be liable for a special assessment in the amount of such deficiency. This special assessment shall be collected by the commission in accordance with the procedures adopted by the commission under Section 71-3-99. All obligations for covered claims arising on or after July 1, 2004, shall be the sole obligation of the association to which the self-insurer in default belongs. The two percent (2%) assessment on each individual self-insurer and on each group self-insurer shall be collected by the commission until the sum of Two Million Dollars ($2,000,000.00) is accumulated by the individual association and the sum of One Million Dollars ($1,000,000.00) is accumulated by the group association. At that time the assessments shall be suspended. However, any employer that becomes authorized under Section 71-3-75 to be a member self-insurer after July 1, 1996, is not entitled to have the two percent (2%) assessment suspended until such member self-insurer has contributed to the guaranty fund to which it belongs for the first four (4) years such employer is a member self-insurer regardless of the amount in the guaranty fund of the association to which it belongs. The two percent (2%) assessment shall be reinstituted for all member self-insurers of the individual association at any time that the guaranty fund balance of the individual association reaches One Million Five Hundred Thousand Dollars ($1,500,000.00) and such assessment shall continue until such time as the balance is Two Million Dollars ($2,000,000.00). The two percent (2%) assessment shall be reinstituted for all member self-insurers of the group association at any time that the guaranty fund balance of the group association reaches Seven Hundred Fifty Thousand Dollars ($750,000.00) and such assessment shall continue until such time as the balance is One Million Dollars ($1,000,000.00). If the maximum assessment, together with the other assets of an association, does not provide in any one (1) year an amount sufficient to make all necessary payments, the funds available in such association shall be paid as directed by the commission and any unpaid portion shall be paid as soon thereafter as funds in such association become available. When the guaranty fund balance of the group association reaches One Million Dollars ($1,000,000.00), the commission may waive the need for bonding requirements for self-funded pools.
(d) Investigate claims brought against the association; adjust, compromise, settle and pay covered claims to the extent of the association's obligations; deny all other claims; and may review settlements, releases and judgments to which the member self-insurer in default were parties to determine the extent to which such settlements, releases and judgments may be properly contested.
(e) Notify such persons as the commission directs under Section 71-3-167(2)(a).
(f) Handle claims through its employees or through one or more other persons designated as servicing facilities. Designation of a servicing facility is subject to the approval of the commission.
(g) Reimburse each servicing facility for obligations of the association paid by the facility and for expenses incurred by the facility while handling claims on behalf of the association, and shall pay the other expenses of the association authorized by Sections 71-3-151 through 71-3-181.
(2) Each association may:
(a) Employ or retain such persons as are necessary to handle claims and perform other duties of the association.
(b) Sue or be sued.
(c) Negotiate and become a party to such contracts as are necessary to carry out the purposes of Sections 71-3-151 through 71-3-181.
(d) Perform such other acts as are necessary or proper to effectuate the purposes of Sections 71-3-151 through 71-3-181.
§ 71-3-165
(1) Each association shall submit to the commission a plan of operation and any amendments thereto necessary or suitable to assure the fair, reasonable and equitable administration of the association. The plan of operation and any amendments thereto shall become effective upon approval in writing by the commission.
(2) If at any time an association fails to submit suitable amendments to its plan, the commission shall, after notice and hearings, adopt and promulgate such reasonable rules as are necessary or advisable to effectuate the provisions of Sections 71-3-151 through 71-3-181. Such rules shall continue in force until modified by the commission or superseded by a plan submitted by the noncomplying association and approved by the commission.
(3) All member self-insurers shall comply with the plan of operation of the association to which they belong. The plan of operation of each association shall:
(a) Establish the procedures whereby all the powers and duties of the association under Section 71-3-163 will be performed.
(b) Establish procedures for handling assets of the association.
(c) Establish the amount and method of reimbursing members of the board of directors under Section 71-3-161.
(d) Establish procedures by which claims may be filed with the association, and establish acceptable forms of proof of covered claims.
(e) Establish regular places and times for meetings of the board of directors.
(f) Establish procedures for records to be kept of all financial transactions of the association, its agents and the board of directors.
(g) Provide that any individual self-insurer or group self-insurer aggrieved by any final action or decision of the association to which it belongs may appeal to the commission within thirty (30) days after the action or decision.
(h) Establish the procedures whereby selections for the board of directors will be submitted to the commission.
(i) Contain additional provisions necessary or proper for the execution of the powers and duties of the association.
(4) The plan of operation of each association may provide that any or all powers and duties of the association, except those under Section 71-3-163(1)(c) and Section 71-3-174, are delegated to a corporation, association or other organization which performs or will perform functions similar to those of the association. Such a corporation, association or organization shall be reimbursed as a servicing facility would be reimbursed, and shall be paid for its performance of any other functions of the association. A delegation under this subsection shall take effect only with the approval of both the board of directors of the association and the commission, and may be made only to a corporation, association or organization which extends protection not substantially less favorable and effective than that provided by Sections 71-3-151 through 71-3-181.
§ 71-3-167
(1) The commission shall:
(a) Upon the request of an association or of any other party or without any request on its own motion, enter any appropriate order finding a member self-insurer to be in default and to determine the date of such default and promptly notify the association to which such member self-insurer belongs of the existence of such default and the date of such default.
(b) Upon request of the board of directors of an association, provide such association with a statement of compensation payments of each member self-insurer of such association.
(2) The commission may:
(a) Require that the group association notify the member self-insurers of any group self-insurer in default and any other interested parties of the default. Such notification shall be by mail at their last known address, where available, but if sufficient information for notification by mail is not available, notice by publication in a newspaper of general circulation shall be sufficient.
(b) Suspend or revoke, after notice and hearing, the authority to self-insure granted under Section 71-3-75, Mississippi Code of 1972, of any member self-insurer who fails to pay an assessment when due, or fails to comply with the plan of operation of the association to which it belongs. As an alternative, the commission may levy a fine on any member self-insurer who fails to pay an assessment when due or fails to comply with the plan of operation. Such fine shall not exceed five percent (5%) of the unpaid assessment per month, except that no fine shall be less than One Hundred Dollars ($100.00) per month.
(c) Revoke the designation of any servicing facility if it finds claims are being handled unsatisfactorily.
(3) Any final action or order of the commission under Sections 71-3-151 through 71-3-181 shall be subject to judicial review in a court of competent jurisdiction.
§ 71-3-169
(1) Any person recovering from an association under Sections 71-3-151 through 71-3-181 shall be deemed to have assigned his rights under the Workers' Compensation Law to such association to the extent of his recovery from such association. Any claimant seeking the protection of Sections 71-3-151 through 71-3-181 shall cooperate with the association against which claim is made to the same extent as such person would have been required to cooperate with the member self-insurer in default. Such association shall have no cause of action under the Workers' Compensation Law against the claimant of the member self-insurer in default for any sums it has paid out except such causes of action as such member self-insurer in default would have had if such sums had been paid by such member self-insurer in default.
(2) An association may recover from the self-insurer in default and from a group self-insurer in default all amounts paid by such association on account of covered claims of employees of the member self-insurer in default and any group self-insurer in default to which such member self-insurer in default belongs, as well as all expenses incurred by such association in evaluating, adjusting, defending or settling covered claims of such employees. It shall be presumed that all amounts paid by such association under this section are reasonable, necessary and otherwise in compliance with this chapter. There shall be added to any recovery under this section expenses of litigation of such association in obtaining such recovery, interest at the rate of eight percent (8%) per annum commencing on the date of such default and a ten percent (10%) penalty.
§ 71-3-173
To aid in the detection and prevention of individual self-insurer insolvencies and group self-insurer insolvencies:
(a) The board of directors of an association may, upon majority vote, request that the commission order an examination of any of its member self-insurers and group self-insurers which the board in good faith believes may be in a financial condition hazardous to the potential claimants or the public. Upon making any such request to the commission, such board of directors shall recommend for commission approval persons to perform the examination. The examination shall commence within thirty (30) days following the commission's approval of such request for examination. The commission may request a board of directors to recommend for commission approval, and a board of directors can request the commission to approve, alternative persons to complete an examination if it is believed the examination is not being performed in a timely and efficient manner. The cost of such examination shall be paid by the association requesting such examination, and examination reports shall be forwarded to the commission and treated as are other examination reports. In no event shall reports of such examination be released to the board of directors of such association prior to release to the public, but this shall not preclude the commission from complying with paragraph (b) of this section. The commission shall notify the board of directors of such association when the examination is completed. Each request for an examination by an association shall be kept on file by the commission, but it shall not be open to public inspection prior to the release of an examination report to the public.
(b) It shall be the duty of the commission to report to the board of directors of an association when it has reasonable cause to believe that any member self-insurer or group self-insurer examined or being examined at the request of the board of directors of such association may be insolvent or in a financial condition hazardous to potential claimants or the public.
(c) The board of directors of an association may, upon majority vote, make reports and recommendations to the commission upon any matter germane to the solvency, bankruptcy or reorganization of any of its member self-insurers and group self-insurers. Such reports and recommendations shall not be considered public documents.
(d) The board of directors of an association may, upon majority vote, make recommendations to the commission for the detection and prevention of member self-insurer insolvencies and group self-insurer insolvencies.
(e) The board of directors of an association shall, at the conclusion of any insolvency, bankruptcy case or default where such association was obligated to pay covered claims, prepare a report on the history and causes of such insolvency and bankruptcy, based on the information available to such association, and submit such report to the commission.
§ 71-3-174
If an association assumes any obligations of an individual self-insurer or group self-insurer under this chapter, and payments of such obligations exceed the assets of such association, such association shall within not less than sixty (60) days thereafter submit for approval by the commission a plan for special assessment of each individual self-insurer and group self-insurer who may be responsible for payment of such obligations in excess of the assets of such association. Such plan for special assessment shall also include the expenses of such association related to the processing of obligations covered by the special assessment plan. Failure to comply with a commission-approved special assessment plan of an association shall create a cause of action in favor of such association against any noncompliant member self-insurer and any noncompliant group self-insurer for recovery of payments and expenses by such association for which the noncompliant member self-insurer or noncompliant group self-insurer should have been obligated. It shall be presumed that all obligations paid by an association pursuant to a commission-approved special assessment plan, including, but not limited to, expenses associated with processing such obligations, are reasonable, necessary and otherwise in compliance with the requirements of this chapter. There shall be added to any recovery under this section expenses of litigation of such association related to such cause of action, interest at the rate of eight percent (8%) per annum beginning on the date of such noncompliance and a ten percent (10%) penalty.
§ 71-3-175
The individual association and group association shall be subject to examination and regulation by the commission. The board of directors of each association shall submit, not later than March 30 of each year, a financial report for the preceding calendar year in a form approved by the commission. The commission shall furnish the board of directors of an association any records of the commission which would aid in the preparation of this financial report.
§ 71-3-177
The individual association and group association shall be exempt from payment of all fees and all taxes levied by this state or any of its subdivisions except taxes levied on real or personal property.
§ 71-3-179
Subject to Section 71-3-174, there shall be no liability on the part of and no cause of action of any nature shall arise against any individual self-insurer, any group self-insurer, association, agents and employees of an association, board of directors of an association, and the commission and its employees and representatives, or any of them, for any good faith, affirmative action taken by any of them in the performance of their powers and duties under Sections 71-3-151 through 71-3-181. This section does not apply to individual employers who are members of a group self-insurer. Such immunity shall not extend to any acts of gross negligence by any such individual self-insurer, group self-insurer, association, agents and employees of an association, board of directors of an association and the commission and its employees and representative committed in the performance of their duties hereunder.
§ 71-3-181
All proceedings in which any individual self-insurer in default or group self-insurer in default is a party before the commission or in any court in this state, on order of the commission, may be stayed for a period not to exceed six (6) months from the date of the default to permit proper defense by such association of all covered claims. If any judgment, order, decision, verdict or finding is made or entered against such individual self-insurer in default or group self-insurer in default while the stay provided in this section is effective, the association to which such individual self-insurer or group self-insurer belongs may apply to have such judgment, order, decision, verdict or finding set aside by the same court or administrator that made such judgment, order, decision, verdict or finding. Such association shall be permitted to enter its appearance and defend against any covered claim which is pending on the date of default or which is filed thereafter.
§ 71-3-201
Sections 71-3-201 through 71-3-225 shall be known and may be cited as the “Drug-Free Workplace Workers' Compensation Premium Reduction Act.”
§ 71-3-203
It is the intent of the Legislature to promote drug-free workplaces in order that employers in this state be afforded the opportunity to maximize their levels of productivity, enhance their competitive positions in the marketplace, and reach their desired levels of success without experiencing the costs, delays and tragedies associated with work-related accidents resulting from substance abuse by employees.
§ 71-3-205
The following words and terms in Sections 71-3-201 through 71-3-225 shall have meanings as follows:
(a) “Employee” means any person who works for salary, wages or other remuneration for an employer.
(b) “Employer” means a person or entity that is subject to the Mississippi Workers' Compensation Law as found in Section 71-3-1 et seq., Mississippi Code of 1972.
§ 71-3-207
(1) If an employer implements a drug-free workplace program substantially in accordance with Sections 71-3-201 through 71-3-225, the employer shall qualify for certification for a five percent (5%) premium discount if offered under the employer's workers' compensation insurance policy.
(2) For each policy of workers' compensation insurance issued or renewed in the state on or after July 1, 1997, a five percent (5%) reduction in the premium for such policy may be granted by the insurer if the insured certifies to the insurer that it has established and maintains a drug-free workplace program that complies with the requirements of Sections 71-3-201 through 71-3-225.
(3) The premium discount provided by this section shall be applied to an insured's workers' compensation insurance pro rata as of the date of receipt of certification by the insurer.
(4) The Workers' Compensation Commission shall promulgate appropriate forms and procedures to allow self-certification by an insured to its insurer. Certification by an insured shall be required for each year in which a premium discount is granted.
(5) The insured's workers' compensation insurance policy shall be subject to an additional premium for the purposes of reimbursement of a previously granted premium discount if it is determined that such insured misrepresented the compliance of its drug-free workplace program within the provisions of Sections 71-3-201 through 71-3-225.
(6) The Workers' Compensation Commission shall be authorized to promulgate rules and regulations necessary for the implementation and enforcement of this section.
§ 71-3-209
A drug-free workplace program must contain the following elements:
(a) Written policy statement as provided in Section 71-3-211;
(b) Comply with the substance abuse testing procedures as provided in Sections 71-7-1 through 71-7-33, Mississippi Code of 1972, if testing is initiated by the employer;
(c) Resources of employee assistance providers or other rehabilitation resources, maintained in accordance with Section 71-3-213;
(d) Employee education as provided in Section 71-3-215; and
(e) Supervisor training in accordance with Section 71-3-217.
§ 71-3-211
A drug-free workplace must provide a written policy statement on substance abuse in order to qualify for the provisions of Section 71-3-207. All employees must be given a written policy statement from the employer that contains:
(a) A general statement of the employer's policy on substance abuse notifying employees that the unlawful manufacture, sale, distribution, solicitation, possession with intent to sell or distribute, or use of alcohol or other drugs is prohibited in the person's workplace;
(b) A statement advising an employee or job applicant of the existence of Sections 71-3-201 through 71-3-225;
(c) A general statement concerning confidentiality;
(d) A statement advising an employee of the employee assistance program, external employee assistance program, or the employer's resource file of employee assistance programs and other persons, entities or organizations designed to assist employees with personal or behavioral problems;
(e) A statement informing an employee of the provisions of the federal Drug-Free Workplace Act if applicable to the employer.
§ 71-3-213
In order for an employer's workplace to qualify as a private sector drug-free workplace and to qualify for the provisions of Section 71-3-207, the following must be met:
(a) If an employer has an employee assistance program, the employer must inform the employee of the benefits and services of the employee assistance program. An employer shall post notice of the employee assistance program in conspicuous places and explore alternatives to publicize such services. In addition, the employer must provide the employee with notice of the policies and procedures regarding access to and utilization of the program.
(b) If an employer does not have an employee assistance program, the employer must maintain a resource file of employee assistance service providers, alcohol and other drug abuse programs, mental health providers, and other persons, entities or organizations available to assist employees with personal or behavioral problems. The employer shall provide all employees information about the existence of the resource file and a summary of the information contained within the resource file. The summary should contain, but need not be limited to, all information necessary to access the services listed in the resource file. In addition, the employer shall post in conspicuous places a listing of multiple employee assistance providers in the area.
§ 71-3-215
An employer must provide all employees with an education program on alcohol and other drug abuse prior to instituting a private sector drug-free workplace program under Sections 71-3-201 through 71-3-225. Also, an employer must provide all employees with an annual education program on alcohol and other drug abuse, in general, and its effects on the workplace, specifically. An education program for a minimum of one (1) hour should include, but is not limited to, the following information:
(a) The explanation of the disease of addiction for alcohol and other drugs;
(b) The effects and dangers of the commonly abused substances in the workplace; and
(c) The company's policies and procedures regarding alcohol and other drug use or abuse in the workplace and how employees who wish to obtain substance abuse treatment can do so.
§ 71-3-217
In order to qualify as a private sector drug-free workplace and to qualify for the provisions of Section 71-3-207, and in addition to the educational program provided in Section 71-3-215, an employer must provide all supervisory personnel a minimum of two (2) hours of training prior to the institution of a drug-free workplace program under Sections 71-3-201 through 71-3-225, and each year thereafter which should include, but is not limited to, the following:
(a) Recognition of evidence of employee alcohol and other drug abuse;
(b) Documentation and corroboration of employee alcohol and other drug abuse;
(c) Referral of alcohol and other drug abusing employees to the proper treatment providers;
(d) Recognition of the benefits of referring alcohol and other drug abusing employees to treatment programs, in terms of employee health and safety and company savings; and
(e) Explanation of any employee health insurance of HMO coverage for alcohol and other drug problems.
§ 71-3-219
(1) All information, interview, reports, statements, memoranda and test results, written or otherwise, received by the employer through a substance abuse program are confidential communications as they pertain to the employee only and may not be used or received in evidence, obtained in discovery or disclosed in any public or private proceedings, except as provided in Sections 71-7-1 through 71-7-33, Mississippi Code of 1972.
(2) Release of any such information under any other circumstance shall be solely pursuant to a written consent form signed voluntarily by the person tested, unless such release is compelled by an agency of the state or a court of competent jurisdiction or unless deemed appropriate by a professional or occupational licensing board in a related disciplinary proceeding. The consent form must contain at a minimum:
(a) The name of the person who is authorized to obtain the information;
(b) The purpose of the disclosure;
(c) The precise information to be disclosed;
(d) The duration of the consent; and
(e) The signature of the person authorizing release of the information.
(3) Nothing in Sections 71-3-201 through 71-3-225 shall be construed to call for actions that may violate federal or state confidentiality statutes for employee assistance professionals and alcohol and other drug abuse counseling or treatment providers.
§ 71-3-221
No cause of action shall arise in favor of any person against an employer based upon the failure of an employer to establish a substance abuse program in accordance with Sections 71-3-201 through 71-3-225.
§ 71-3-223
Nothing in Sections 71-3-201 through 71-3-225 shall be construed to operate retroactively, and nothing in Sections 71-3-201 through 71-3-225 shall abrogate the right of an employer under state law to conduct substance abuse tests, or implement employee substance abuse testing programs. Only those programs that meet the criteria outlined in Sections 71-3-201 through 71-3-225 qualify for reduced workers' compensation insurance rates under Section 71-3-207.
§ 71-3-225
If any provision of Sections 71-3-201 through 71-3-225 or application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of Sections 71-3-201 through 71-3-225 that can be given effect without the invalid provision or application, and to this end the provisions of Sections 71-3-201 through 71-3-225 are severable.
Chapter 5 Unemployment Compensation
§ 71-5-1
This chapter shall be known and may be cited as the “Mississippi Employment Security Law.” The purpose of the law is to promote employment security by increasing opportunities for placement through the maintenance of a system of public employment offices and to provide through the accumulation of reserves for the payment of compensation to individuals with respect to their unemployment.
§ 71-5-3
As a guide to the interpretation and application of this chapter, the public policy of this state is declared to be as follows: Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden, which now so often falls with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this greatest hazard of our economic life. This can be provided by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance. The legislature, therefore, declares that in its considered judgment the public good and the general welfare of the citizens of this state require the enactment of this measure, under the police powers of the state, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.
§ 71-5-5
The Legislature finds and declares that the existence and continued operation of a federal tax upon employers, against which some portion of the contributions required under this chapter may be credited, will protect Mississippi employers from undue disadvantages in their competition with employers in other states. If at any time, upon a formal complaint to the Governor, he shall find that Title IX of the Social Security Act has been amended or repealed by Congress or has been held unconstitutional by the Supreme Court of the United States, and that, as a result thereof, the provisions of this chapter requiring Mississippi employers to pay contributions will subject them to a serious competitive disadvantage in relation to employers in other states, he shall publish such findings and proclaim that the operation of the provisions of this chapter requiring the payment of contributions and benefits shall be suspended for a period of not more than six (6) months. The Department of Employment Security shall thereupon requisition from the Unemployment Trust Fund all monies therein standing to its credit, and shall deposit such monies, together with any other monies in the Unemployment Compensation Fund, as a special fund in any banks or public depositories in this state in which general funds of the state may be deposited.
In all other cases, and unless the Governor shall issue such proclamation, this chapter shall remain in full force and effect.
If within the aforesaid six-month period the Governor shall find that other federal legislation has been enacted which avoids the competitive disadvantage herein described, he shall forthwith publicly so proclaim, and upon the date of such proclamation, the provisions of this chapter requiring the payment of contributions and benefits shall again become fully operative as of the date of such suspension with the same effect as if such suspension had not occurred. If within such six-month period no such other federal legislation is enacted or the Legislature of this state has not otherwise prescribed, the Department of Employment Security shall, under regulations prescribed by it, refund, without interest, to each employer by whom contributions have been paid his pro rata share of the total contributions paid under this chapter. Any interest or earnings of the fund shall be available to the Department of Employment Security to pay for the costs of making such refunds. When the Department of Employment Security shall have executed the duties herein prescribed and performed such other acts as are incidental to the termination of its duties under this chapter, the Governor shall, by public proclamation, declare that the provisions of this chapter, in their entirety, shall cease to be operative.
§ 71-5-7
If at any time the provisions of this chapter requiring the payment of contributions and benefits shall be held invalid under the Constitution of this state by the Supreme Court of this state or invalid under the United States Constitution by the Supreme Court of the United States, the department shall forthwith requisition from the unemployment trust fund all monies therein standing to the credit of the department, and shall deposit such monies, together with any other monies in the unemployment compensation fund, in any banks or public depositories in this state in which general funds of the state may be deposited. If within six (6) months after the date of such decision the Legislature of this state enacts a new unemployment compensation law, such monies shall be paid into the unemployment compensation fund established thereunder. If within such six-month period the Legislature of this state has not enacted a new unemployment compensation law, the department shall, under regulations prescribed by it, refund, without interest, to each employer by whom contributions have been paid, his pro rata share of the total contributions paid under this chapter. Any interest or earnings of the fund shall be available to the department to pay for the costs of making such refunds. The provisions of this chapter, so far as necessary to the execution by the department of the duties prescribed in this section and to the performance of such other acts as are incidental to the termination of its duties under this chapter, shall remain in full force and effect until the completion thereof.
§ 71-5-9
Refunds provided under Sections 71-5-5 and 71-5-7 shall not be subject to any provisions of law requiring specific appropriations or other formal release by state officers of moneys in their custody.
§ 71-5-11
As used in this chapter, unless the context clearly requires otherwise:
A. “Base period” means the first four (4) of the last five (5) completed calendar quarters immediately preceding the first day of an individual's benefit year.
B. “Benefit year” with respect to any individual means the period beginning with the first day of the first week with respect to which he or she first files a valid claim for benefits, and ending with the day preceding the same day of the same month in the next calendar year; and, thereafter, the period beginning with the first day of the first week with respect to which he or she next files his or her valid claim for benefits, and ending with the day preceding the same day of the same month in the next calendar year. Any claim for benefits made in accordance with Section 71-5-515 shall be deemed to be a “valid claim” for purposes of this subsection if the individual has been paid the wages for insured work required under Section 71-5-511(e).
C. “Contributions” means the money payments to the State Unemployment Compensation Fund required by this chapter.
D. “Calendar quarter” means the period of three (3) consecutive calendar months ending on March 31, June 30, September 30, or December 31.
E. “Department” or “commission” means the Mississippi Department of Employment Security, Office of the Governor.
F. “Executive director” means the Executive Director of the Mississippi Department of Employment Security, Office of the Governor, appointed under Section 71-5-107.
G. “Employing unit” means this state or another state or any instrumentalities or any political subdivisions thereof or any of their instrumentalities or any instrumentality of more than one (1) of the foregoing or any instrumentality of any of the foregoing and one or more other states or political subdivisions, any Indian tribe as defined in Section 3306(u) of the Federal Unemployment Tax Act (FUTA), which includes any subdivision, subsidiary or business enterprise wholly owned by such Indian tribe, any individual or type of organization, including any partnership, association, trust, estate, joint-stock company, insurance company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal representative of a deceased person, which has or had in its employ one or more individuals performing services for it within this state. All individuals performing services within this state for any employing unit which maintains two (2) or more separate establishments within this state shall be deemed to be employed by a single employing unit for all the purposes of this chapter. Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall be deemed to be employed by such employing unit for all purposes of this chapter, whether such individual was hired or paid directly by such employing unit or by such agent or employee, provided the employing unit had actual or constructive knowledge of the work. All individuals performing services in the employ of an elected fee-paid county official, other than those related by blood or marriage within the third degree computed by the rule of the civil law to such fee-paid county official, shall be deemed to be employed by such county as the employing unit for all the purposes of this chapter. For purposes of defining an “employing unit” which shall pay contributions on remuneration paid to individuals, if two (2) or more related corporations concurrently employ the same individual and compensate such individual through a common paymaster which is one (1) of such corporations, then each such corporation shall be considered to have paid as remuneration to such individual only the amounts actually disbursed by it to such individual and shall not be considered to have paid as remuneration to such individual such amounts actually disbursed to such individual by another of such corporations.
H. “Employer” means:
(1) Any employing unit which,
(a) In any calendar quarter in either the current or preceding calendar year paid for service in employment wages of One Thousand Five Hundred Dollars ($1,500.00) or more, except as provided in paragraph (9) of this subsection, or
(b) For some portion of a day in each of twenty (20) different calendar weeks, whether or not such weeks were consecutive, in either the current or the preceding calendar year had in employment at least one (1) individual (irrespective of whether the same individual was in employment in each such day), except as provided in paragraph (9) of this subsection;
(2) Any employing unit for which service in employment, as defined in subsection I(3) of this section, is performed;
(3) Any employing unit for which service in employment, as defined in subsection I(4) of this section, is performed;
(4)(a) Any employing unit for which agricultural labor, as defined in subsection I(6) of this section, is performed;
(b) Any employing unit for which domestic service in employment, as defined in subsection I(7) of this section, is performed;
(5) Any individual or employing unit which acquired the organization, trade, business, or substantially all the assets thereof, of another which at the time of such acquisition was an employer subject to this chapter;
(6) Any individual or employing unit which acquired its organization, trade, business, or substantially all the assets thereof, from another employing unit, if the employment record of the acquiring individual or employing unit subsequent to such acquisition, together with the employment record of the acquired organization, trade, or business prior to such acquisition, both within the same calendar year, would be sufficient to constitute an employing unit as an employer subject to this chapter under paragraph (1) or (3) of this subsection;
(7) Any employing unit which, having become an employer under paragraph (1), (3), (5) or (6) of this subsection or under any other provisions of this chapter, has not, under Section 71-5-361, ceased to be an employer subject to this chapter;
(8) For the effective period of its election pursuant to Section 71-5-361(3), any other employing unit which has elected to become subject to this chapter;
(9)(a) In determining whether or not an employing unit for which service other than domestic service is also performed is an employer under paragraph (1) or (4)(a) of this subsection, the wages earned or the employment of an employee performing domestic service, shall not be taken into account;
(b) In determining whether or not an employing unit for which service other than agricultural labor is also performed is an employer under paragraph (1) or (4)(b) of this subsection, the wages earned or the employment of an employee performing services in agricultural labor, shall not be taken into account. If an employing unit is determined an employer of agricultural labor, such employing unit shall be determined an employer for purposes of paragraph (1) of this subsection;
(10) All entities utilizing the services of any employee leasing firm shall be considered the employer of the individuals leased from the employee leasing firm. Temporary help firms shall be considered the employer of the individuals they provide to perform services for other individuals or organizations.
I. “Employment” means and includes:
(1) Any service performed, which was employment as defined in this section and, subject to the other provisions of this subsection, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied.
(2) Services performed for remuneration for a principal:
(a) As an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages (other than milk), or laundry or dry-cleaning services;
(b) As a traveling or city salesman, other than as an agent-driver or commission-driver, engaged upon a full-time basis in the solicitation on behalf of, and the transmission to, a principal (except for sideline sales activities on behalf of some other person) of orders from wholesalers, retailers, contractors, or operator of hotels, restaurants, or other similar establishments for merchandise for resale or supplies for use in their business operations.
However, for purposes of this subsection, the term “employment” shall include services described in paragraphs (2)(a) and (b) of this subsection, only if:
(i) The contract of service contemplates that substantially all of the services are to be performed personally by such individual;
(ii) The individual does not have a substantial investment in facilities used in connection with the performance of the services (other than in facilities for transportation); and
(iii) The services are not in the nature of a single transaction that is not part of a continuing relationship with the person for whom the services are performed.
(3) Service performed in the employ of this state or any of its instrumentalities or any political subdivision thereof or any of its instrumentalities or any instrumentality of more than one (1) of the foregoing or any instrumentality of any of the foregoing and one or more other states or political subdivisions or any Indian tribe as defined in Section 3306(u) of the Federal Unemployment Tax Act (FUTA), which includes any subdivision, subsidiary or business enterprise wholly owned by such Indian tribe; however, such service is excluded from “employment” as defined in the Federal Unemployment Tax Act by Section 3306(c)(7) of that act and is not excluded from “employment” under paragraph (5) of this subsection.
(4)(a) Services performed in the employ of a religious, charitable, educational, or other organization, but only if the service is excluded from “employment” as defined in the Federal Unemployment Tax Act, 26 USCS Section 3306(c)(8), and
(b) The organization had four (4) or more individuals in employment for some portion of a day in each of twenty (20) different weeks, whether or not such weeks were consecutive, within the current or preceding calendar year, regardless of whether they were employed at the same moment of time.
(5) For the purposes of paragraphs (3) and (4) of this subsection, the term “employment” does not apply to service performed:
(a) In the employ of:
(i) A church or convention or association of churches; or
(ii) An organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches; or
(b) By a duly ordained, commissioned, or licensed minister of a church in the exercise of his or her ministry, or by a member of a religious order in the exercise of duties required by such order; or
(c) In the employ of a governmental entity referred to in paragraph (3) of this subsection, if such service is performed by an individual in the exercise of duties:
(i) As an elected official;
(ii) As a member of a legislative body, or a member of the judiciary, of a state or political subdivision or a member of an Indian tribal council;
(iii) As a member of the State National Guard or Air National Guard;
(iv) As an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency;
(v) In a position which, under or pursuant to the laws of this state or laws of an Indian tribe, is designated as:
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A major nontenured policy-making or advisory position, or
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A policy-making or advisory position the performance of the duties of which ordinarily does not require more than eight (8) hours per week; or
(d) In a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury, or providing remunerative work for individuals who because of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market, by an individual receiving such rehabilitation or remunerative work; or
(e) By an inmate of a custodial or penal institution; or
(f) As part of an unemployment work-relief or work-training program assisted or financed, in whole or in part, by any federal agency or agency of a state or political subdivision thereof or of an Indian tribe, by an individual receiving such work relief or work training, unless coverage of such service is required by federal law or regulation.
(6) Service performed by an individual in agricultural labor as defined in paragraph (15)(a) of this subsection when:
(a) Such service is performed for a person who:
(i) During any calendar quarter in either the current or the preceding calendar year paid remuneration in cash of Twenty Thousand Dollars ($20,000.00) or more to individuals employed in agricultural labor, or
(ii) For some portion of a day in each of twenty (20) different calendar weeks, whether or not such weeks were consecutive, in either the current or the preceding calendar year, employed in agricultural labor ten (10) or more individuals, regardless of whether they were employed at the same moment of time.
(b) For the purposes of this paragraph (6) any individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for any other person shall be treated as an employee of such crew leader:
(i) If such crew leader holds a valid certificate of registration under the Farm Labor Contractor Registration Act of 1963; or substantially all the members of such crew operate or maintain tractors, mechanized harvesting or crop dusting equipment, or any other mechanized equipment, which is provided by such crew leader; and
(ii) If such individual is not an employee of such other person within the meaning of paragraph (1) of this subsection.
(c) For the purpose of subsection I(6), in the case of any individual who is furnished by a crew leader to perform service in agricultural labor for any other person and who is not treated as an employee of such crew leader under paragraph (6)(b) of this subsection:
(i) Such other person and not the crew leader shall be treated as the employer of such individual; and
(ii) Such other person shall be treated as having paid cash remuneration to such individual in an amount equal to the amount of cash remuneration paid to such individual by the crew leader (either on his or her own behalf or on behalf of such other person) for the service in agricultural labor performed for such other person.
(d) For the purposes of this paragraph (6) the term “crew leader” means an individual who:
(i) Furnishes individuals to perform service in agricultural labor for any other person;
(ii) Pays (either on his or her own behalf or on behalf of such other person) the individuals so furnished by him or her for the service in agricultural labor performed by them; and
(iii) Has not entered into a written agreement with such other person under which such individual is designated as an employee of such other person.
(7) The term “employment” shall include domestic service in a private home, local college club or local chapter of a college fraternity or sorority performed for an employing unit which paid cash remuneration of One Thousand Dollars ($1,000.00) or more in any calendar quarter in the current or the preceding calendar year to individuals employed in such domestic service. For the purpose of this subsection, the term “employment” does not apply to service performed as a “sitter” at a hospital in the employ of an individual.
(8) An individual's entire service, performed within or both within and without this state, if:
(a) The service is localized in this state; or
(b) The service is not localized in any state but some of the service is performed in this state; and
(i) The base of operations or, if there is no base of operations, the place from which such service is directed or controlled is in this state; or
(ii) The base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual's residence is in this state.
(9) Services not covered under paragraph (8) of this subsection and performed entirely without this state, with respect to no part of which contributions are required and paid under an unemployment compensation law of any other state or of the federal government, shall be deemed to be employment subject to this chapter if the individual performing such services is a resident of this state and the department approves the election of the employing unit for whom such services are performed that the entire service of such individual shall be deemed to be employment subject to this chapter.
(10) Service shall be deemed to be localized within a state if:
(a) The service is performed entirely within such state; or
(b) The service is performed both within and without such state, but the service performed without such state is incidental to the individual's service within the state; for example, is temporary or transitory in nature or consists of isolated transactions.
(11) The services of an individual who is a citizen of the United States, performed outside the United States (except in Canada), in the employ of an American employer (other than service which is deemed “employment” under the provisions of paragraph (8), (9) or (10) of this subsection or the parallel provisions of another state's law), if:
(a) The employer's principal place of business in the United States is located in this state; or
(b) The employer has no place of business in the United States; but
(i) The employer is an individual who is a resident of this state; or
(ii) The employer is a corporation which is organized under the laws of this state; or
(iii) The employer is a partnership or a trust and the number of the partners or trustees who are residents of this state is greater than the number who are residents of any one (1) other state; or
(c) None of the criteria of subparagraphs (a) and (b) of this paragraph are met but the employer has elected coverage in this state or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits, based on such service, under the law of this state; or
(d) An “American employer,” for purposes of this paragraph, means a person who is:
(i) An individual who is a resident of the United States; or
(ii) A partnership if two-thirds ( 2/3 ) or more of the partners are residents of the United States; or
(iii) A trust if all of the trustees are residents of the United States; or
(iv) A corporation organized under the laws of the United States or of any state.
(12) All services performed by an officer or member of the crew of an American vessel on or in connection with such vessel, if the operating office from which the operations of such vessel operating on navigable waters within, or within and without, the United States are ordinarily and regularly supervised, managed, directed and controlled, is within this state, notwithstanding the provisions of paragraph (8) of this subsection.
(13) Service with respect to which a tax is required to be paid under any federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund, or which as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, 26 USCS Section 3301 et seq., is required to be covered under this chapter, notwithstanding any other provisions of this subsection.
(14) Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the department that such individual has been and will continue to be free from control and direction over the performance of such services both under his or her contract of service and in fact; and the relationship of employer and employee shall be determined in accordance with the principles of the common law governing the relation of master and servant.
(15) The term “employment” shall not include:
(a) Agricultural labor, except as provided in paragraph (6) of this subsection. The term “agricultural labor” includes all services performed:
(i) On a farm or in a forest in the employ of any employing unit in connection with cultivating the soil, in connection with cutting, planting, deadening, marking or otherwise improving timber, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, fur-bearing animals and wildlife;
(ii) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm;
(iii) In connection with the production or harvesting of naval stores products or any commodity defined in the Federal Agricultural Marketing Act, 12 USCS Section 1141j(f), or in connection with the raising or harvesting of mushrooms, or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways not owned or operated for profit, used exclusively for supplying and storing water for farming purposes;
(iv)(A) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half ( 1/2 ) of the commodity with respect to which such service is performed;
(B) In the employ of a group of operators of farms (or a cooperative organization of which such operators are members) in the performance of service described in subitem (A), but only if such operators produced more than one-half ( 1/2 ) of the commodity with respect to which such service is performed;
(C) The provisions of subitems (A) and (B) shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption;
(v) On a farm operated for profit if such service is not in the course of the employer's trade or business;
(vi) As used in paragraph (15)(a) of this subsection, the term “farm” includes stock, dairy, poultry, fruit, fur-bearing animals, and truck farms, plantations, ranches, nurseries, ranges, greenhouses, or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards.
(b) Domestic service in a private home, local college club, or local chapter of a college fraternity or sorority, except as provided in paragraph (7) of this subsection, or service performed as a “sitter” at a hospital in the employ of an individual.
(c) Casual labor not in the usual course of the employing unit's trade or business.
(d) Service performed by an individual in the employ of his or her son, daughter, or spouse, and service performed by a child under the age of twenty-one (21) in the employ of his or her father or mother.
(e) Service performed in the employ of the United States government or of an instrumentality wholly owned by the United States; except that if the Congress of the United States shall permit states to require any instrumentalities of the United States to make payments into an unemployment fund under a state unemployment compensation act, then to the extent permitted by Congress and from and after the date as of which such permission becomes effective, all of the provisions of this chapter shall be applicable to such instrumentalities and to services performed by employees for such instrumentalities in the same manner, to the same extent, and on the same terms as to all other employers and employing units. If this state should not be certified under the Federal Unemployment Tax Act, 26 USCS Section 3304(c), for any year, then the payment required by such instrumentality with respect to such year shall be deemed to have been erroneously collected and shall be refunded by the department from the fund in accordance with the provisions of Section 71-5-383.
(f) Service performed in the employ of an “employer” as defined by the Railroad Unemployment Insurance Act, 45 USCS Section 351(a), or as an “employee representative” as defined by the Railroad Unemployment Insurance Act, 45 USCS Section 351(f), and service with respect to which unemployment compensation is payable under an unemployment compensation system for maritime employees, or under any other unemployment compensation system established by an act of Congress; however, the department is authorized and directed to enter into agreements with the proper agencies under such act or acts of Congress, which agreements shall become effective ten (10) days after publication thereof in the manner provided in Section 71-5-117 for general rules, to provide reciprocal treatment to individuals who have, after acquiring potential rights to benefits under this chapter, acquired rights to unemployment compensation under such act or acts of Congress or who have, after acquiring potential rights to unemployment compensation under such act or acts of Congress, acquired rights to benefits under this chapter.
(g) Service performed in any calendar quarter in the employ of any organization exempt from income tax under the Internal Revenue Code, 26 USCS Section 501(a) (other than an organization described in 26 USCS Section 401(a)), or exempt from income tax under 26 USCS Section 521 if the remuneration for such service is less than Fifty Dollars ($50.00).
(h) Service performed in the employ of a school, college, or university if such service is performed:
(i) By a student who is enrolled and is regularly attending classes at such school, college or university, or
(ii) By the spouse of such a student if such spouse is advised, at the time such spouse commences to perform such service, that
(A) The employment of such spouse to perform such service is provided under a program to provide financial assistance to such student by such school, college, or university, and
(B) Such employment will not be covered by any program of unemployment insurance.
(i) Service performed by an individual under the age of twenty-two (22) who is enrolled at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on, as a student in a full-time program taken for credit at such institution, which combines academic instruction with work experience, if such service is an integral part of such program and such institution has so certified to the employer, except that this subparagraph shall not apply to service performed in a program established for or on behalf of an employer or group of employers.
(j) Service performed in the employ of a hospital, if such service is performed by a patient of the hospital, as defined in subsection M of this section.
(k) Service performed as a student nurse in the employ of a hospital or a nurses' training school by an individual who is enrolled and is regularly attending classes in a nurses' training school chartered or approved pursuant to state law; and services performed as an intern in the employ of a hospital by an individual who has completed a four-year course in a medical school chartered or approved pursuant to state law.
(l) Service performed by an individual as an insurance agent or as an insurance solicitor, if all such service performed by such individual is performed for remuneration solely by way of commission.
(m) Service performed by an individual in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution, except those employed by political subdivisions, state and local governments, nonprofit organizations and Indian tribes, as defined by this chapter, or any other entities for which coverage is required by federal statute and regulation.
(n) If the services performed during one-half ( 1/2 ) or more of any pay period by an employee for the employing unit employing him or her constitute employment, all the services of such employee for such period shall be deemed to be employment; but if the services performed during more than one-half ( 1/2 ) of any such pay period by an employee for the employing unit employing him or her do not constitute employment, then none of the services of such employee for such period shall be deemed to be employment. As used in this subsection, the term “pay period” means a period (of not more than thirty-one (31) consecutive days) for which a payment of remuneration is ordinarily made to the employee by the employing unit employing him or her.
(o) Service performed by a barber or beautician whose work station is leased to him or her by the owner of the shop in which he or she works and who is compensated directly by the patrons he or she serves and who is free from direction and control by the lessor.
(p) Service performed by a “direct seller” if:
(i) Such person is engaged in the trade or business of selling (or soliciting the sale of) consumer products to any buyer on a buy-sell basis, a deposit-commission basis, or any similar basis which the department prescribes by regulations, for resale (by the buyer or any other person) in the home or otherwise than in a permanent retail establishment; or such person is engaged in the trade or business of selling (or soliciting the sale of) consumer products in the home or otherwise than in a permanent retail establishment;
(ii) Substantially all the remuneration (whether or not paid in cash) for the performance of the services described in item (i) of this subparagraph is directly related to sales or other output (including the performance of services) rather than to the number of hours worked; and
(iii) The services performed by the person are performed pursuant to a written contract between such person and the person for whom the services are performed and such contract provides that the person will not be treated as an employee with respect to such services for federal tax purposes.
J. “Employment office” means a free public employment office or branch thereof, operated by this state or maintained as a part of the state controlled system of public employment offices.
K. “Public employment service” means the operation of a program that offers free placement and referral services to applicants and employers, including job development.
L. “Fund” means the Unemployment Compensation Fund established by this chapter, to which all contributions required and from which all benefits provided under this chapter shall be paid.
M. “Hospital” means an institution which has been licensed, certified, or approved by the State Department of Health as a hospital.
N. “Institution of higher learning,” for the purposes of this section, means an educational institution which:
(1) Admits as regular students only individuals having a certificate of graduation from a high school, or the recognized equivalent of such a certificate;
(2) Is legally authorized in this state to provide a program of education beyond high school;
(3) Provides an educational program for which it awards a bachelor's or higher degree, or provides a program which is acceptable for full credit toward such a degree, a program of postgraduate or postdoctoral studies, or a program of training to prepare students for gainful employment in a recognized occupation;
(4) Is a public or other nonprofit institution;
(5) Notwithstanding any of the foregoing provisions of this subsection, all colleges and universities in this state are institutions of higher learning for purposes of this section.
O. “Re-employment assistance” means money payments payable to an individual as provided in this chapter and in accordance with Section 3304(a)(4) and 3306(h) of the Federal Unemployment Tax Act and Section 303(a)(5) of the Social Security Act, with respect to his or her unemployment through no fault of his or her own. Wherever the terms “benefits” or “unemployment benefits” appear in this chapter, they shall mean re-employment assistance.
P. (1) “State” includes, in addition to the states of the United States of America, the District of Columbia, Commonwealth of Puerto Rico and the Virgin Islands.
(2) The term “United States” when used in a geographical sense includes the states, the District of Columbia, Commonwealth of Puerto Rico and the Virgin Islands.
(3) The provisions of paragraphs (1) and (2) of this subsection P, as including the Virgin Islands, shall become effective on the day after the day on which the United States Secretary of Labor approves for the first time under Section 3304(a) of the Internal Revenue Code of 1954 an unemployment compensation law submitted to the secretary by the Virgin Islands for such approval.
Q. “Unemployment.”
(1) An individual shall be deemed “unemployed” in any week during which he or she performs no services and with respect to which no wages are payable to him or her, or in any week of less than full-time work if the wages payable to him or her with respect to such week are less than his or her weekly benefit amount as computed and adjusted in Section 71-5-505. This definition shall exclude individuals receiving voluntary payments from employers, from any source, that are in lieu of the worker's regular wages. However, individuals receiving voluntary payments of less than their set full weekly wage, as well as individuals who do not work a specified number of hours each week resulting in inconsistent weekly wages, and who are receiving voluntary payments for partial wage substitution, may be considered “unemployed,” but would be required to report the gross amount of the voluntary payments to be treated as wages so the appropriate deductions to the weekly benefit amount can be made. The department shall prescribe regulations applicable to unemployed individuals, making such distinctions in the procedure as to total unemployment, part-total unemployment, partial unemployment of individuals attached to their regular jobs, and other forms of short-time work, as the department deems necessary.
(2) An individual's week of total unemployment shall be deemed to commence only after his registration with an employment office, except as the department may by regulation otherwise prescribe.
(3) Unemployment shall not include administrative leave for any week with respect to which:
(a) An employer has designated their employee as being on official administrative leave;
(b) The administrative leave is for a specified period of time;
(c) There is no apparent permanent job separation; and
(d) The employee has received compensation equal to his or her standard compensation.
(4) If the individual on official administrative leave, as designated by the employer, does not receive full compensation in line with his or her standard hours or salary, the individual may be eligible for unemployment insurance benefits as partially unemployed for the wages they are missing.
(5) Any individual on official administrative leave is required to report all compensation received.
R. (1) “Wages” means all remuneration for personal services, including commissions and bonuses and the cash value of all remuneration in any medium other than cash, except that “wages,” for purposes of determining employer's coverage and payment of contributions for agricultural and domestic service means cash remuneration only. Wages shall include payments from employers, from any source, and for any reason, that are in lieu of the employee's regular wages. The reasonable cash value of remuneration in any medium other than cash shall be estimated and determined in accordance with rules prescribed by the department; however, that the term “wages” shall not include:
(a) The amount of any payment made to, or on behalf of, an employee under a plan or system established by an employer which makes provision for his or her employees generally or for a class or classes of his or her employees (including any amount paid by an employer for insurance or annuities, or into a fund, to provide for any such payment), on account of:
(i) Retirement, or
(ii) Sickness or accident disability, or
(iii) Medical or hospitalization expenses in connection with sickness or actual disability, or
(iv) Death, provided the employee:
(A) Has not the option to receive, instead of provision for such death benefit, any part of such payment or, if such death benefit is insured, any part of the premiums (or contributions to premiums) paid by his or her employer, and
(B) Has not the right, under the provisions of the plan or system or policy of insurance providing for such death benefit, to assign such benefit or to receive a cash consideration in lieu of such benefit, either upon his or her withdrawal from the plan or system providing for such benefit or upon termination of such plan or system or policy of insurance or of his or her employment with such employer;
(b) Dismissal payments which the employer is not legally required to make;
(c) Payment by an employer (without deduction from the remuneration of an employee) of the tax imposed by the Internal Revenue Code, 26 USCS Section 3101;
(d) From and after January 1, 1992, the amount of any payment made to or on behalf of an employee for a “cafeteria” plan, which meets the following requirements:
(i) Qualifies under Section 125 of the Internal Revenue Code;
(ii) Covers only employees;
(iii) Covers only noncash benefits;
(iv) Does not include deferred compensation plans.
(2) [Not enacted].
S. “Week” means calendar week or such period of seven (7) consecutive days as the department may by regulation prescribe. The department may by regulation prescribe that a week shall be deemed to be in, within, or during any benefit year which includes any part of such week.
T. “Insured work” means “employment” for “employers.”
U. The term “includes” and “including,” when used in a definition contained in this chapter, shall not be deemed to exclude other things otherwise within the meaning of the term defined.
V. “Employee leasing arrangement” means any agreement between an employee leasing firm and a client, whereby specified client responsibilities such as payment of wages, reporting of wages for unemployment insurance purposes, payment of unemployment insurance contributions and other such administrative duties are to be performed by an employee leasing firm, on an ongoing basis.
W. “Employee leasing firm” means any entity which provides specified duties for a client company such as payment of wages, reporting of wages for unemployment insurance purposes, payment of unemployment insurance contributions and other administrative duties, in connection with the client's employees, that are directed and controlled by the client and that are providing ongoing services for the client.
X. (1) “Temporary help firm” means an entity which hires its own employees and provides those employees to other individuals or organizations to perform some service, to support or supplement the existing workforce in special situations such as employee absences, temporary skill shortages, seasonal workloads and special assignments and projects, with the expectation that the worker's position will be terminated upon the completion of the specified task or function.
(2) “Temporary employee” means an employee assigned to work for the clients of a temporary help firm.
Y. For the purposes of this chapter, the term “notice” shall include any official communication, statement or other correspondence required under the administration of this chapter, and sent by the department through the United States Postal Service or electronic or digital transfer, via modem or the Internet.
§ 71-5-13
(1) The department is hereby authorized to enter into arrangements with the appropriate agencies of other states or the federal government, whereby individuals performing services in this and other states for a single employing unit under circumstances not specifically provided for in Section 71-5-11, subsection I, or under similar provisions in the unemployment compensation laws of such other states, shall be deemed to be engaged in employment performed entirely within this state or within one (1) of such other states and whereby potential rights to benefits accumulated under the unemployment compensation laws of one or more states or under such a law of the federal government, or both, may constitute the basis for the payment of benefits through a single appropriate agency under terms which the department finds will be fair and reasonable as to all affected interests and will not result in any substantial loss to the fund.
(2) The department is also authorized to enter into arrangements with the appropriate agencies of other states or of the federal government:
(a) Whereby wages or services upon the basis of which an individual may become entitled to benefits under the unemployment compensation law of another state or of the federal government shall be deemed to be wages for employment by employers for the purposes of Sections 71-5-501 through 71-5-507 and Section 71-5-511(e), provided such other state agency or agency of the federal government has agreed to reimburse the fund for such portion of benefits paid under this chapter upon the basis of such wages or services as the department finds will be fair and reasonable as to all affected interests; and
(b) Whereby the department will reimburse other state or federal agencies charged with the administration of unemployment compensation laws with such reasonable portion of benefits paid under the law of any such other states or of the federal government, upon the basis of employment or wages for employment by employers, as the department finds will be fair and reasonable as to all affected interests. Reimbursements so payable shall be deemed to be benefits for the purposes of Sections 71-5-451 through 71-5-459. The department is hereby authorized to make to other state or federal agencies, and receive from such other state or federal agencies, reimbursements from or to the fund, in accordance with arrangements pursuant to this section.
(3) The department is also authorized, in its discretion, to enter into or cooperate in arrangements with any federal agency whereby the facilities and services of the personnel of the department may be utilized for the taking of claims and the payment of unemployment compensation or allowances under any federal law enacted for the benefit of discharged members of the Armed Forces.
(4) The department shall participate in any arrangements for the payment of compensation on the basis of combining an individual's wages and employment covered under this chapter with his wages and employment covered under the unemployment compensation laws of other states which are approved by the United States Secretary of Labor in consultation with the state unemployment compensation agencies as reasonably calculated to assure the prompt and full payment of compensation in such situations and which include provisions for:
(a) Applying the base period of a single state law to a claim involving the combining of an individual's wages and employment covered under two (2) or more state unemployment compensation laws; and
(b) Avoiding the duplicate use of wages and employment by reason of such combining.
§ 71-5-15
Benefits shall be deemed to be due and payable under this chapter only to the extent provided in this chapter and to the extent that moneys are available therefor to the credit of the unemployment compensation fund; and neither the state nor the commission shall be liable for any amount in excess of such sums.
§ 71-5-17
(1) In any civil action to enforce the provisions of this chapter, the commission, the board of review, and the state may be represented by any qualified attorney who is employed by the commission and is designated by it for this purpose or, at the commission's request, by the attorney general.
(2) All criminal actions for violation of any provision of this chapter, or of any rules and regulations issued pursuant thereto, shall be prosecuted by the attorney general of the state or, at his request and under his direction, by the prosecuting attorney of any county in which the employer has a place of business or the violator resides.
§ 71-5-19
(1) Whoever makes a false statement or representation knowing it to be false, or knowingly fails to disclose a material fact, to obtain or increase any benefit or other payment under this chapter or under an employment security law of any other state, of the federal government or of a foreign government, either for himself or for any other person, shall be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), or by imprisonment for not longer than thirty (30) days, or by both such fine and imprisonment; and each such false statement or representation or failure to disclose a material fact shall constitute a separate offense.
(2) Any employing unit, any officer or agent of an employing unit or any other person who makes a false statement or representation knowing it to be false, or who knowingly fails to disclose a material fact, to prevent or reduce the payment of benefits to any individual entitled thereto, or to avoid becoming or remaining subject hereto, or to avoid or reduce any contribution or other payment required from any employing unit under this chapter, or who willfully fails or refuses to make any such contribution or other payment, or to furnish any reports required hereunder or to produce or permit the inspection or copying of records as required hereunder, shall be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00), or by imprisonment for not longer than sixty (60) days, or by both such fine and imprisonment; and each such false statement, or representation, or failure to disclose a material fact, and each day of such failure or refusal shall constitute a separate offense. In lieu of such fine and imprisonment, the employing unit or representative, or both employing unit and representative, if such representative is an employing unit in this state and is found to be a party to such violation, shall not be eligible for a contributions rate of less than five and four-tenths percent (5.4%) for the tax year in which such violation is discovered by the department and for the next two (2) succeeding tax years.
(3) Any person who shall willfully violate any provision of this chapter or any other rule or regulation thereunder, the violation of which is made unlawful or the observance of which is required under the terms of this chapter and for which a penalty is neither prescribed herein nor provided by any other applicable statute, shall be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00), or by imprisonment for not longer than sixty (60) days, or by both such fine and imprisonment; and each day such violation continues shall be deemed to be a separate offense. In lieu of such fine and imprisonment, the employing unit or representative, or both employing unit and representative, if such representative is an employing unit in this state and is found to be a party to such violation, shall not be eligible for a contributions rate of less than five and four-tenths percent (5.4%) for the tax year in which the violation is discovered by the department and for the next two (2) succeeding tax years.
(4)(a) An overpayment of benefits occurs when a person receives benefits under this chapter:
(i) While any conditions for the receipt of benefits imposed by this chapter were not fulfilled in his case;
(ii) While he was disqualified from receiving benefits; or
(iii) When such person receives benefits and is later found to be disqualified or ineligible for any reason, including, but not limited to, a redetermination or reversal by the department or the courts of a previous decision to award such person benefits.
(b) Any person receiving an overpayment shall, in the discretion of the department, be liable to have such sum deducted from any future benefits payable to him under this chapter and shall be liable to repay to the department for the Unemployment Compensation Fund a sum equal to the overpayment amount so received by him; and such sum shall be collectible in the manner provided in Sections 71-5-363 through 71-5-383 for the collection of past-due contributions. In addition to Sections 71-5-363 through 71-5-383, the following shall apply to cases involving damages for overpaid unemployment benefits which have been obtained and/or received through fraud as defined by department regulations and laws governing the department. By definition, fraud can include failure to report earnings while filing for unemployment benefits. In the event of fraud, a penalty of twenty percent (20%) of the amount of the overpayment shall be assessed. Three-fourths ( 3/4 ) of that twenty percent (20%) penalty shall be deposited into the unemployment trust fund and shall be used only for the purpose of payment of unemployment benefits. The remainder of that twenty percent (20%) penalty shall be deposited into the Special Employment Security Administrative Fund. Interest on the overpayment balance shall accrue at a rate of one percent (1%) per month on the unpaid balance until repaid and shall be deposited into the Special Employment Security Administration Fund. All interest, penalties and damages deposited into the Special Employment Security Administration Fund shall be used by the department for administration of the Mississippi Department of Employment Security.
(c) Any such judgment against such person for collection of such overpayment shall be in the form of a seven-year renewable lien. Unless action be brought thereon prior to expiration of the lien, the department must refile the notice of the lien prior to its expiration at the end of seven (7) years. There shall be no limit upon the number of times the department may refile notices of liens for collection of overpayments.
(d) All warrants issued by the department for the collection of any unemployment tax or for an overpayment of benefits imposed by statute and collected by the department shall be used to levy on salaries, compensation or other monies due the delinquent employer or claimant. No such warrant shall be issued until after the delinquent employer or claimant has exhausted all appeal rights associated with the debt. The warrants shall be served by mail or by delivery by an agent of the department on the person or entity responsible or liable for the payment of the monies due the delinquent employer or claimant. Once served, the employer or other person owing compensation due the delinquent employer or claimant shall pay the monies over to the department in complete or partial satisfaction of the liability. An answer shall be made within thirty (30) days after service of the warrant in the form and manner determined satisfactory by the department. Failure to pay the money over to the department as required by this section shall result in the served party being personally liable for the full amount of the monies owed and the levy and collection process may be issued against the party in the same manner as other debts owed to the department. Except as otherwise provided by this section, the answer, the amount payable under the warrant and the obligation of the payor to continue payment shall be governed by the garnishment laws of this state but shall be payable to the department.
(5) The department, by agreement with another state or the United States, as provided under Section 303(g) of the Social Security Act, may recover any overpayment of benefits paid to any individual under the laws of this state or of another state or under an unemployment benefit program of the United States. Any overpayments subject to this subsection may be deducted from any future benefits payable to the individual under the laws of this state or of another state or under an unemployment program of the United States.
§ 71-5-21
The legislature reserves the right to amend or repeal all or any part of this chapter at any time; and there shall be no vested private right of any kind against such amendment or repeal. All the rights, privileges, or immunities conferred by this chapter or by acts done pursuant thereto shall exist subject to the power of the legislature to amend or repeal this chapter at any time.
§ 71-5-101
There is established the Mississippi Department of Employment Security, Office of the Governor. The Department of Employment Security shall be the Mississippi Employment Security Commission and shall retain all powers and duties as granted to the Mississippi Employment Security Commission. Wherever the term “Employment Security Commission” appears in any law, the same shall mean the Mississippi Department of Employment Security, Office of the Governor. The Executive Director of the Department of Employment Security may assign to the appropriate offices such powers and duties deemed appropriate to carry out the lawful functions of the department.
§ 71-5-107
The department shall administer this chapter through a full-time salaried executive director, to be appointed by the Governor, with the advice and consent of the Senate. He shall be responsible for the administration of this chapter under authority delegated to him by the Governor.
§ 71-5-109
There is created a Board of Review consisting of three (3) members to be appointed by the executive director. The executive director shall designate one (1) member of the Board of Review as chairman. Each member shall be paid a salary or per diem at a rate to be determined by the executive director, and such expenses as may be allowed by the executive director. All salaries, per diem and expenses of the Board of Review shall be paid from the Employment Security Administration Fund.
§ 71-5-111
There is created in the State Treasury a special fund to be known as the Employment Security Administration Fund. All monies which are deposited or paid into this fund are appropriated and made available to the department. All monies in this fund shall be expended solely for the purpose of defraying the cost of administration of this chapter, and for no other purpose whatsoever. The fund shall consist of all monies appropriated by this state and all monies received from the United States of America, or any agency thereof, or from any other source for such purpose. Notwithstanding any provision of this section, all monies requisitioned and deposited in this fund pursuant to Section 71-5-457 shall remain part of the Employment Security Administration Fund and shall be used only in accordance with the conditions specified in that section. All monies in this fund shall be deposited, administered and disbursed in the same manner and under the same conditions and requirements as is provided by law for other special funds in the State Treasury. The State Treasurer shall be liable on his official bond for the faithful performance of his duties in connection with the Employment Security Administration Fund under this chapter.
§ 71-5-112
All funds received by the Mississippi Department of Employment Security shall clear through the State Treasury as provided and required by Sections 71-5-111 and 71-5-453. All expenditures from the administration fund of the department authorized by Section 71-5-111 shall be expended only pursuant to appropriation approved by the Legislature and as provided by law.
§ 71-5-113
All monies received from the Social Security Board or its successors for the administration of this chapter shall be expended solely for the purposes and in the amounts found necessary by the Social Security Board or its successors for the proper and efficient administration of this chapter.
It shall be the duty of the department to take appropriate action with respect to the replacement, within a reasonable time, of any monies received from the Social Security Board, or its successors, for the administration of this chapter, and monies used to match grants pursuant to the provisions of the Wagner-Peyser Act, which the board, or its successors, find, because of any action or contingency, have been lost or have been expended for purposes other than, or in amounts in excess of those found necessary by the Social Security Board, or its successors, for the proper administration of this chapter. Funds which have been expended by the department or its agents in accordance with the budget approved by the Social Security Board, or its successors, or in accordance with the general standards and limitations promulgated by the Social Security Board, or its successors, prior to such expenditure (where proposed expenditures have not been specifically disapproved by the Social Security Board, or its successors), shall not be deemed to require replacement. To effectuate the purposes of this paragraph, it shall be the duty of the department to take such action to safeguard the expenditure of the funds referred to herein as it deems necessary. In the event of a loss of such funds or an improper expenditure thereof as herein defined, it shall be the duty of the department to notify the Governor of any such loss or improper expenditure and submit to him a request for an appropriation in the amount thereof. The Governor shall transmit to the next regular session of the Legislature following such notification, the department's request for an appropriation in an amount necessary to replace funds which have been lost or improperly expended as defined above. Such request of the department for an appropriation shall not be subject to the provisions of Sections 27-103-101 through 27-103-139. The Legislature recognizes its obligation to replace such funds as may be necessary and shall make necessary appropriations in accordance with such requests.
§ 71-5-114
There is created in the State Treasury a special fund, to be known as the “Special Employment Security Administration Fund,” into which shall be deposited or transferred all interest, penalties and damages collected on and after July 1, 1982, pursuant to Sections 71-5-363 through 71-5-379 and all interest and penalties required to be deposited into the fund pursuant to Section 71-5-19(4)(b). Interest, penalties and damages collected on delinquent payments deposited during any calendar quarter in the clearing account in the Unemployment Trust Fund shall, as soon as practicable after the close of such calendar quarter, be transferred to the Special Employment Security Administration Fund. All monies in this fund shall be deposited, administered and disbursed in the same manner and under the same conditions and requirements as is provided by law for other special funds in the State Treasury. The State Treasurer shall be liable on his official bond for the faithful performance of his duties in connection with the Special Employment Security Administration Fund under this chapter. Those monies may be expended for any programs for which the department has administrative responsibility but shall not be expended or made available for expenditure in any manner which would permit their substitution for (or permit a corresponding reduction in) federal funds which would, in the absence of those monies, be available to finance expenditures for the administration of the state unemployment compensation and employment service laws or any other laws directing the administration of any programs for which the department has the administrative responsibility. Nothing in this section shall prevent those monies in this fund from being used as a revolving fund to cover expenditures necessary and proper under the law for which federal funds have been duly requested but not yet received, subject to the charging of such expenditures against such funds when necessary. The monies in this fund may be used by the department for the payment of costs of administration of the employment security laws of this state which are found not to be or not to have been properly and validly chargeable against funds obtained from federal sources. All monies in this Special Employment Security Administration Fund shall be continuously available to the department for expenditure in accordance with the provisions of this chapter, and shall not lapse at any time. The monies in this fund are specifically made available to replace, as contemplated by Section 71-5-113, expenditures from the Employment Security Administration Fund established by Section 71-5-111, which have been found, because of any action or contingency, to have been lost or improperly expended.
The department, whenever it is of the opinion that the money in the Special Employment Security Administration Fund is more than ample to pay for all foreseeable needs for which such special fund is set up, may, by written order, order the transfer therefrom to the Unemployment Compensation Fund of such amount of money in the Special Employment Security Administration Fund as it deems proper, and the same shall thereupon be immediately transferred to the Unemployment Compensation Fund.
§ 71-5-115
It shall be the duty of the executive director to administer this chapter; and the executive director shall have the power and authority to adopt, amend or rescind such rules and regulations, to employ such persons, make such expenditures, require such reports, make such investigations, and take such other action as he deems necessary or suitable to that end. Such rules and regulations shall be effective upon publication in the manner, not inconsistent with the provisions of this chapter, which the executive director shall prescribe. The executive director shall determine the department's own organization and methods of procedure in accordance with the provisions of this chapter, and shall have an official seal which shall be judicially noticed. Not later than the first day of February in each year, the executive director shall submit to the Governor a report covering the administration and operation of this chapter during the preceding fiscal year and shall make such recommendations for amendments to this chapter as the executive director deems proper. Whenever the executive director believes that a change in contribution or benefit rates will become necessary to protect the solvency of the fund, he shall promptly so inform the Governor and the Legislature, and make recommendations with respect thereto.
§ 71-5-116
The Mississippi Department of Employment Security will develop an annual report which tracks data received from contractors. Contractors will cooperate with the Mississippi Department of Employment Security to accumulate relevant data. Collected data and reports are intended solely to allow the Mississippi Department of Employment Security to improve workforce training programs, tailoring trainings to employer needs and hiring trends for in-demand jobs in Mississippi.
§ 71-5-117
General rules may be adopted, amended or rescinded by the executive director only after public hearing or opportunity to be heard thereon, of which proper notice has been given. General rules shall become effective ten (10) days after filing with the Secretary of State and publication in one or more newspapers of general circulation in this state. Regulations may be adopted, amended or rescinded by the executive director and shall become effective in the manner and at the time prescribed by the executive director.
§ 71-5-119
The department shall cause to be available for distribution to the public the text of this chapter, its regulations and general rules, its reports to the Governor, and any other material it deems relevant and suitable, and shall furnish the same to any person upon application therefor.
§ 71-5-121
Subject to other provisions of this chapter, the executive director is authorized to appoint, fix the compensation, and prescribe the duties and powers of such officers, accountants, attorneys, experts and other persons as may be necessary in the performance of department duties; however, all personnel who were former members of the Armed Forces of the United States of America shall be given credit regardless of rate, rank or commission. All positions shall be filled by persons selected and appointed on a nonpartisan merit basis, in accordance with Section 25-9-101 et seq., that provides for a state service personnel system. The executive director shall not employ any person who is an officer or committee member of any political party organization. The executive director may delegate to any such person so appointed such power and authority as he deems reasonable and proper for the effective administration of this chapter, and may in his discretion bond any person handling monies or signing checks hereunder. The veteran status of an individual shall be considered and preference given in accordance with the provisions of the State Personnel Board.
The department and its employees are exempt from Sections 25-15-101 and 25-15-103.
The department may use federal granted funds to provide such group health, life, accident and hospitalization insurance for its employees as may be agreed upon by the department and the federal granting authorities.
The department shall adopt a “layoff formula” to be used wherever it is determined that, because of reduced workload, budget reductions or in order to effect a more economical operation, a reduction in force shall occur in any group.
In establishing this formula, the department shall give effect to the principle of seniority and shall provide that seniority points may be added for disabled veterans and veterans, with due regard to the efficiency of the service. Any such layoff formula shall be implemented according to the policies, rules and regulations of the State Personnel Board.
§ 71-5-123
The executive director shall retain all powers and duties as granted to the state advisory council appointed by the former Employment Security Commission. The executive director may appoint local advisory councils, composed in each case of an equal number of employer representatives and employee representatives who may fairly be regarded as representative because of their vocation, employment or affiliations, and of such members representing the general public as the executive director may designate. Such councils shall aid the department in formulating policies and discussing problems related to the administration of this chapter and in assuring impartiality and freedom from political influence in the solution of such problems. Members of the advisory councils shall receive a per diem in accordance with Section 25-3-69 for attendance upon meetings of the council, and shall be reimbursed for actual and necessary traveling expenses. The per diem and expenses herein authorized shall be paid from the Employment Security Administration Fund.
§ 71-5-125
The department shall take all appropriate steps to reduce and prevent unemployment; to encourage and assist in the adoption of practical methods of vocational training, retraining and vocational guidance; to investigate, recommend, advise and assist in the establishment and operation, by municipalities, counties, school districts and the state, of reserves for public works to be used in times of business depression and unemployment; to promote the reemployment of unemployed workers throughout the state in every other way that may be feasible; and to these ends to carry on and publish the results of investigation and research studies.
§ 71-5-127
(1) Any information or records concerning an individual or employing unit obtained by the department pursuant to the administration of this chapter or any other federally funded programs for which the department has responsibility shall be private and confidential, except as otherwise provided in this article or by regulation. Information or records may be released by the department when the release is required by the federal government in connection with, or as a condition of funding for, a program being administered by the department.
(2) Each employing unit shall keep true and accurate work records, containing such information as the department may prescribe. Such records shall be open to inspection and be subject to being copied by the department or its authorized representatives at any reasonable time and as often as may be necessary. The department, Board of Review and any referee may require from any employing unit any sworn or unsworn reports with respect to persons employed by it which they or any of them deem necessary for the effective administration of this chapter. Information, statements, transcriptions of proceedings, transcriptions of recordings, electronic recordings, letters, memoranda, and other documents and reports thus obtained or obtained from any individual pursuant to the administration of this chapter shall, except to the extent necessary for the proper administration of this chapter, be held confidential and shall not be published or be opened to public inspection (other than to public employees in the performance of their public duties) in any manner revealing the individual's or employing unit's identity.
(3) Any claimant or his legal representative at a hearing before an appeal tribunal or the Board of Review shall be supplied with information from such records to the extent necessary for the proper presentation of his claim in any proceeding pursuant to this chapter.
(4) Any employee or member of the Board of Review or any employee of the department who violates any provisions of this section shall be fined not less than Twenty Dollars ($20.00) nor more than Two Hundred Dollars ($200.00), or imprisoned for not longer than ninety (90) days, or both.
(5) The department may make the state's records relating to the administration of this chapter available to the Railroad Retirement Board, and may furnish the Railroad Retirement Board, at the expense of such board, such copies thereof as the Railroad Retirement Board deems necessary for its purposes. The department may afford reasonable cooperation with every agency of the United States charged with the administration of any unemployment insurance law.
§ 71-5-129
Records hereinafter designated, which are found by the department to be useless, may be disposed of in accordance with approved records control schedules.
(a) Records which have been preserved by it for not less than three (3) years:
(1) Initial claims for benefits,
(2) Continued claims for benefits,
(3) Correspondence and master index cards in connection with such claims for benefits, and
(4) Individual wage slips filed by employers subject to the provisions of the Unemployment Compensation Law.
(b) Records which have been preserved by it for not less than six (6) months after becoming inactive:
(1) Work applications,
(2) Cross-index cards for work applications,
(3) Test records,
(4) Employer records,
(5) Work orders,
(6) Clearance records,
(7) Counseling records,
(8) Farm placement records, and
(9) Correspondence relating to all such records.
Nothing herein contained shall be construed as authorizing the destruction or disposal of basic fiscal records reflecting the financial operations of the department and no records may be destroyed without the approval of the Director of the Department of Archives and History.
§ 71-5-131
All letters, reports, communications, or any other matters, either oral or written, from the employer or employee to each other or to the department or any of its agents, representatives or employees, which shall have been written, sent, delivered or made in connection with the requirements and administration of this chapter shall be absolutely privileged and shall not be made the subject matter or basis of any suit for slander or libel in any court of the State of Mississippi unless the same be false in fact and maliciously written, sent, delivered or made for the purpose of causing a denial of benefits under this chapter.
§ 71-5-133
In any case where an employing unit or any officer, member or agent thereof, or any other person having possession of the records thereof, shall fail or refuse upon demand by the department or its duly appointed agents to produce or permit the examination or copying of any book, paper, account, record or other data pertaining to payrolls or employment or ownership of interests or stock in any employing unit, or bearing upon the correctness of any report, or for the purpose of making a report as required by this chapter where none has been made, then and in that event the department or its duly authorized agents may, by the issuance of a subpoena, require the attendance of such employing unit or any officer, member or agent thereof, or any other person having possession of the records thereof, and take testimony with respect to any such matter and may require any such person to produce any books or records specified in such subpoena. The department or its authorized agents at any such hearing shall have power to administer oaths to any such person or persons. When any person called as a witness by a subpoena signed by the department or its agents and served upon him by the sheriff of a county of which such person is a resident, or wherein is located the principal office of such employing unit or wherein such records are located or kept, shall fail to obey such subpoena to appear before the department or its authorized agent, or shall refuse to testify or to answer any questions or to produce any book, record, paper or other data when required to do so, such failure or refusal shall be reported to the Attorney General, who shall thereupon institute proceedings by the filing of a petition in the name of the State of Mississippi, on the relation of the department, in the circuit court or other court of competent jurisdiction of the county where such witness resides, or wherein such records are located or kept, to compel the obedience of such witness. Such petition shall set forth the facts and circumstances of the demand for and refusal or failure to permit the examination or copying of such records, or the failure or refusal of such witness to testify in answer to such subpoena or to produce the records so required by such subpoena. Such court, upon the filing and docketing of such petition, shall thereupon promptly issue an order to the defendants named in the petition to produce forthwith in such court, or at a place in such county designated in such order for the examination or copying by the department or its duly appointed agents, the records, books or documents so described, and to testify concerning matters described in such petition. Unless such defendants to such petition shall appear in the court upon a day specified in such order, which day shall be not more than ten (10) days after the date of issuance of such order, and offer, under oath, good and sufficient reasons why such examination or copying should not be permitted, or why such subpoena should not be obeyed, such court shall thereupon deliver to the department or its agents, for examination or copying, the records, books and documents so described in the petition and so produced in such court, and shall order the defendants to appear in answer to the subpoena of the department or its agents, and to testify concerning matters inquired about by the department. Any employing unit or any officer, member or agent thereof, or any other person having possession of the records thereof, who shall willfully disobey such order of the court after the same shall have been served upon him shall be guilty of indirect contempt of such court from which such order shall have issued, and may be adjudged in contempt of the court and punished therefor as provided by law.
§ 71-5-135
If any employing unit fails to make any report required by this chapter, the department or its authorized agents shall give notice to such employing unit to make and file such report within fifteen (15) days from the date of such notice. If such employing unit, by its proper members, officers or agents, shall fail or refuse to make and file such reports within such time, then and in that event such report shall be made by the department or its authorized agents from the best information available, and the amount of contributions due shall be computed thereon; and such report shall be prima facie correct for the purposes of this chapter.
§ 71-5-137
In the discharge of the duties imposed by this chapter, the department, any referee, the members of the Board of Review, and any duly authorized representative of any of them shall have power to administer oaths and affirmations, to take depositions, certify to official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda and other records deemed necessary as evidence in connection with a disputed claim or the administration of this chapter.
§ 71-5-139
In case of contumacy or refusal to obey a subpoena issued to any person, any court in this state within the jurisdiction of which the inquiry is carried on, or within the jurisdiction of which the person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the department, the Board of Review, any referee, or any duly authorized representative of any of them, shall have jurisdiction to issue to such person an order requiring such person to appear before the department, the Board of Review, any referee, or any duly authorized representative of any of them, there to produce evidence if so ordered or there to give testimony touching the matter under investigation or in question. Any failure to obey such order of the court may be punished by the court as a contempt thereof. Any person who shall, without just cause, fail or refuse to attend and testify or to answer any lawful inquiry or to produce books, papers, correspondence, memoranda and other records if it is in his power so to do, in obedience to a subpoena of the department, the Board of Review, any referee, or any duly authorized representative of any of them, shall be punished by a fine of not more than Two Hundred Dollars ($200.00), or by imprisonment for not longer than sixty (60) days, or by both such fine and imprisonment; and each day such violation continues shall be deemed to be a separate offense.
§ 71-5-141
No person shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda and other records before the department, the Board of Review, any referee, or any duly authorized representative of any of them, or in obedience to the subpoena of any of them in any cause or proceeding before the department, the Board of Review or an appeal tribunal, on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to a penalty or forfeiture; but no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying.
§ 71-5-143
In the administration of this chapter, the department shall cooperate, to the fullest extent consistent with the provisions of this chapter, with the Social Security Board created by the Social Security Act, approved August 14, 1935, as amended; shall make such reports in such form and containing such information as the Social Security Board may from time to time require, and shall comply with such provisions as the Social Security Board may from time to time find necessary to assure the correctness and verification of such reports; and shall comply with the reasonable, valid and lawful regulations prescribed by the Social Security Board pursuant to and under the authority of the Social Security Act, governing the expenditures of such sums as may be allotted and paid to this state under Title III of the Social Security Act, as amended, for the purpose of assisting in the administration of this chapter.
Upon request therefor, the department shall furnish to any agency of the United States charged with the administration of public works, or assistance through public employment, the name, address, ordinary occupation and employment status of each recipient of benefits, and such recipient's rights to further benefits under this chapter.
§ 71-5-145
The building located at 1235 Echelon Parkway in Jackson, Mississippi, and in which the Mississippi Department of Employment Security is housed, shall be named the Henry J. Kirksey Building. The Department of Finance and Administration shall prepare a distinctive plaque, to be placed in a prominent place within the Henry J. Kirksey Building, which states the background, accomplishments and service to the state of the Honorable Henry J. Kirksey.
§ 71-5-146
(1) The Mississippi Department of Employment Security shall have the authority to fingerprint and conduct a background investigation on every employee, contractor and subcontractor who:
(a) Has access to Federal Tax Information (FTI); or
(b) Is otherwise required by state or federal law or regulations to undergo a background investigation.
(2) The department shall have the authority to enact policies and procedures that allow designated department employees to:
(a) Access and review state and federal criminal history records;
(b) Fingerprint individuals identified in subsection (1) of this section;
(c) Forward the fingerprints to the Federal Bureau of Investigation (FBI) for a fingerprint-based national criminal history record check for the purpose of establishing and ensuring that background investigation requirements for all department employees, contractors and subcontractors that have access to FTI are consistent with the Internal Revenue Service background investigation requirements for access to FTI, including, but not limited to, IRS Publication 1075; and
(d) Develop additional background policies and procedures as required by state or federal law or regulations.
§ 71-5-201
The Mississippi State Employment Service is established in the Mississippi Department of Employment Security, Office of the Governor. The department, in the conduct of such service, shall establish and maintain free public employment offices in such number and in such places as may be necessary for the proper administration of this article and for the purpose of performing such functions as are within the purview of the act of Congress entitled “An act to provide for the establishment of a national employment system and for cooperation with the states in the promotion of such system, and for other purposes” (29 USCS Section 49 et seq.). Any existing free public employment offices maintained by the state but not heretofore under the jurisdiction of the department shall be transferred to the jurisdiction of the department, and upon such transfer all duties and powers conferred upon any other department, agency or officers of this state relating to the establishment, maintenance and operation of free public employment offices shall be vested in the department. The Mississippi State Employment Service shall be administered by the department, which is charged with the duty to cooperate with any official or agency of the United States having powers or duties under the provisions of the act of Congress, as amended, and to do and perform all things necessary to secure to this state the benefits of that act of Congress, as amended, in the promotion and maintenance of a system of public employment offices. The provisions of that act of Congress, as amended, are accepted by this state, in conformity with 29 USCS Section 49c, and this state will observe and comply with the requirements thereof. The department is designated and constituted the agency of this state for the purposes of that act. The department may cooperate with or enter into agreements with the Railroad Retirement Board or veteran's organization with respect to the establishment, maintenance and use of free employment service facilities.
§ 71-5-203
All moneys received by this state under the said act of Congress, as amended, shall be paid into the employment security administration fund. Said moneys are hereby made available to the commission to be expended as provided by this article and by said act of Congress, upon voucher signed by the executive director or such other officer or employee of the commission as it may authorize so to do. For the purpose of establishing and maintaining free public employment offices, the commission is authorized to enter into agreements with the railroad retirement board or any other agency of the United States charged with the administration of an unemployment compensation law, with any political subdivision of this state, or with any private, non-profit organization; and as a part of any such agreement, the commission may accept moneys, services, or quarters as a contribution to the employment security administration fund.
§ 71-5-351
(1) Contributions shall accrue and become payable by each employer for each calendar year in which he is subject to this chapter. Such contributions shall become due and be paid by each employer to the department for the fund each calendar quarter on or before the last day of the month next succeeding each calendar quarter in which the contributions accrue unless the employer has filed an election with the department to participate in the Mississippi Level Payment Plan (MLPP) and complies with the provision of the MLPP. The department may extend the due date of such contributions if the due date falls on a Saturday, Sunday or state or federal holiday. Such contributions shall not be deducted, in whole or in part, from the wages of individuals in such employer's employ.
(2)(a) Any employer who is a newly subject employer or any employer who meets the requirements of participation in the MLPP shall be allowed one (1) participation election per year. The department may by regulation establish exceptions to this rule as appropriate. The department shall establish by regulation the requirements for computation and adjustment of compensation and shall compute the amount of payments that will be made quarterly and notify each employer before the first tax payment is due for the year. Equal payments will be made for calendar quarters ending March, June and September and settlement will be made for any overage or shortage at the time payment is due for the December quarter.
(b) An employer who meets the following criteria may participate in the MLPP:
(i) The employer has not been delinquent in filing unemployment reports or paying unemployment taxes to the department during the last two (2) calendar years and must make current all other delinquent unemployment taxes and reports;
(ii) The employer has been an employer subject to the unemployment laws of the State of Mississippi, or in accordance with department regulations regarding MLPP, for at least twelve (12) months prior to the year the employer starts participating;
(iii) The employer must agree to file reports through the department's online system or other agency prescribed electronic facility and pay electronically;
(iv) The employer remains current in filing and paying taxes; and
(v) The employer must make the election by April 1 of the year.
(c) Employers who participate in the MLPP and pay their contribution by bank draft shall utilize the pay schedule provided for in this paragraph. The pay schedule shall be as follows:
(i) January to March due date May 15;
(ii) April to June due date August 15;
(iii) July to September due date November 15; and
(iv) October to December due date January 31.
(d) In the event the computed Size of Fund Index (SOFI) for any rate year computation falls below one percent (1.0%), the additional fifteen (15) days' delay provided for bank draft customers will be suspended for that year.
(3) For purposes of payment of contributions on remuneration paid to individuals, if two (2) or more related corporations concurrently employ the same individual and compensate such individual through a common paymaster which is one of such corporations, each such corporation shall be considered to have paid as remuneration to such individual only the amounts actually disbursed by it to such individual and shall not be considered to have paid as remuneration to such individual such amounts actually disbursed to such individual by another of such corporations.
In the payment of any contributions, a fractional part of a cent shall be disregarded unless it amounts to One-half Cent ( 1/2 ¢) or more, in which case it shall be increased to One Cent (1¢).
(4) For the purposes of this section and Sections 71-5-353, 71-5-357 and 71-5-359, taxable wages shall not include that part of remuneration which, after remuneration equal to Seven Thousand Dollars ($7,000.00) through December 31, 2010, and Fourteen Thousand Dollars ($14,000.00) thereafter, has been paid in a calendar year to an individual by an employer or his predecessor with respect to employment during any calendar year, is paid to such individual by such employer during such calendar year unless that part of the remuneration is subject to a tax under a federal law imposing a tax against which credit may be taken for contributions required to be paid into a state employment fund. For the purposes of this section, the term “employment” shall include service constituting employment under any unemployment compensation law of another state.
(5) Absent evidence of willful or fraudulent attempt to avoid taxation, the effective date of liability of an employer or assessment of liability for covered employment against an employer shall not occur for any period preceding the three (3) calendar years before the date of registration or assessment, unless said three-year limitations period is waived by the employer.
(6) The executive director may grant a reasonable extension of time beyond the statutory due date within which to file any report required by this section to an employer located in an area included in a declaration of an emergency or disaster by the President or the Governor. The executive director may, in his discretion, recognize extensions of time authorized and granted by the Internal Revenue Service for the filing of tax returns.
§ 71-5-353
(1)(a) Each employer shall pay unemployment insurance contributions equal to five and four-tenths percent (5.4%) of taxable wages paid by him each calendar year, except as may be otherwise provided in Section 71-5-361 and except that each newly subject employer shall pay unemployment insurance contributions at the rate of one percent (1%) of taxable wages, for his first year of liability, one and one-tenth percent (1.1%) of taxable wages for his second year of liability, and one and two-tenths percent (1.2%) of taxable wages for his third and subsequent years of liability unless the employer's experience-rating record has been chargeable throughout at least the twelve (12) consecutive calendar months ending on the most recent computation date at the time the rate for a year is determined; thereafter the employer's contribution rate shall be determined in accordance with the provisions of Section 71-5-355.
(b) Notwithstanding the newly subject employer contribution rate provided for in paragraph (a) of this subsection, the contribution rate of all newly subject employers shall be reduced by seven one-hundredths of one percent (.07%) for calendar year 2013 only. The contribution rate of all newly subject employers shall be reduced by three one-hundredths of one percent (.03%) for calendar year 2014 only. For purposes of this chapter, “newly subject employers” means employers whose unemployment insurance experience-rating record has not been chargeable throughout at least the twelve (12) consecutive calendar months ending on the most recent computation date at the time the contribution rate for a year is determined.
(2)(a)(i) There is hereby created in the Treasury of the State of Mississippi special funds to be known as the “Mississippi Workforce Enhancement Training Fund”, the “Mississippi Works Fund” and the “Mississippi Office of Workforce Development Fund” which consist of funds collected pursuant to subsection (3) of this section and any other monies that may be appropriated to the funds from the Legislature.
(ii) Special funds collected shall initially be deposited into the Mississippi Department of Employment Security bank account for clearing contribution collections and subsequently appropriate amounts shall be transferred to the Mississippi Workforce Investment and Training Fund Holding Account described in Section 71-5-453. In the event any employer pays an amount insufficient to cover the total contributions due, the amounts due shall be satisfied in the following order:
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Unemployment contributions;
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Mississippi Workforce Enhancement Training contributions, Mississippi Office of Workforce Development contributions and the Mississippi Works contributions, known collectively as the Mississippi Workforce Investment and Training contributions, on a pro rata basis;
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Interest and damages; then
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Legal and processing costs.
The amount of unemployment insurance contributions due for any period will be the amount due according to the actual computations unless the employer is participating in the MLPP. In that event, the amount due is the MLPP amount computed by the department.
Cost of collection and administration of the Mississippi Workforce Enhancement Training contribution, the Mississippi Office of Workforce Development contribution and the Mississippi Works contribution shall be allocated based on a plan approved by the United States Department of Labor (USDOL). The Mississippi Community College Board shall pay the cost of collecting the Mississippi Workforce Enhancement Training contributions, the Office of Workforce Development shall pay the cost of collecting the Mississippi Office of Workforce Development contributions and the Mississippi Department of Employment Security shall pay the cost of collecting the Mississippi Works contributions. Payments shall be made semiannually with the cost allocated to each based on a USDOL approved plan on a pro rata basis, for periods ending in June and December of each year. Payment shall be made by each organization to the department no later than sixty (60) days after the billing date. Cost shall be allocated under the USDOL's approved plan and in the same ratio as each contribution type represents to the total authorized by subparagraph (ii)2 of this paragraph to be collected for the period.
(b) Mississippi Workforce Enhancement Training contributions and Mississippi Office of Workforce Development contributions shall be distributed for calendar years after calendar year 2014 as follows, ninety-three and seventy-five one-hundredths percent (93.75%) shall be distributed to the Mississippi Workforce Enhancement Training Fund and the remainder shall be distributed to the Mississippi Office of Workforce Development Fund;
(c) All contributions collected for the State Workforce Enhancement Training Fund, the Mississippi Office of Workforce Development Fund and the Mississippi Works Fund will be initially deposited into the Mississippi Department of Employment Security bank account for clearing contribution collections and subsequently transferred to the Workforce Investment and Training Holding Account and will be held by the Mississippi Department of Employment Security in such account for a period of not less than thirty (30) days. After such period, the Mississippi Workforce Enhancement Training contributions shall be transferred to the Mississippi Community College Board Treasury Account, with oversight provided by the Mississippi Office of Workforce Development, the Mississippi Office of Workforce Development contributions shall be transferred to the Mississippi Office of Workforce Development Treasury Account and the Mississippi Works contributions shall be transferred to the Mississippi Department of Employment Security Mississippi Works Treasury Account. The Mississippi Office of Workforce Development contributions and the Mississippi Works contributions shall be transferred in the same ratio as each contribution type represents to the total authorized by paragraph (a)(ii)2 of this subsection to be collected for the period and within the time frame determined by the department; however, except in cases of extraordinary circumstances, these funds shall be transferred within fifteen (15) days. Interest earnings or interest credits on deposit amounts in the Workforce Investment and Training Holding Account shall be retained in the account to pay the banking costs of the account. If after the period of twelve (12) months interest earnings less banking costs exceeds Ten Thousand Dollars ($10,000.00), such excess amounts shall be transferred to the respective accounts within thirty (30) days following the end of each calendar year on the basis described in paragraph (b) of this subsection. Interest earnings and/or interest credits for the Mississippi Office of Workforce Development funds shall be used for the payment of banking costs and excess amounts shall be used in accordance with the rules and regulations of the Mississippi Office of Workforce Development expenditure policies.
(d) All enforcement procedures for the collection of delinquent unemployment contributions contained in Sections 71-5-363 through 71-5-383 shall be applicable in all respects for collections of delinquent unemployment insurance contributions designated for the Unemployment Compensation Fund, the Mississippi Workforce Enhancement Training Fund, the Mississippi Office of Workforce Development Fund and the Mississippi Works Fund.
(e)(i) Except as otherwise provided for in this subparagraph (i), all monies deposited into the Mississippi Workforce Enhancement Training Fund Treasury Account shall be directed by the Mississippi Office of Workforce Development, in collaboration with the Mississippi Community College Board, in accordance with the Workforce Training Act of 1994 (Section 37-153-1 et seq.) and under policies approved by the Mississippi Office of Workforce Development for the following purposes: to provide training in collaboration with the Mississippi Community College Board and individual community and junior colleges to employers and employees in order to enhance employee productivity. Such training may be subject to a minimal administrative fee of not more than five percent (5%) to be paid from the Mississippi Workforce Enhancement Training Fund as established by the Office of Workforce Development. The initial priority of these funds shall be for the benefit of existing businesses located within the state. Employers may request training for existing employees and/or newly hired employees from the Mississippi Office of Workforce Development. The office, in consultation with the Mississippi Community College Board, will be responsible for approving the training. A portion of the funds collected for the Mississippi Workforce Enhancement Training Fund shall be used for the development of performance measures to measure the effectiveness of the use of the Mississippi Workforce Enhancement Training Fund dollars. These performance measures shall be uniform for all training projects and shall be reported to the Governor, Lieutenant Governor, Speaker of the House, and members of the Legislature. Nothing in this section or elsewhere in law shall be interpreted as giving the Office of Workforce Development or State Workforce Investment Board authority to direct the Mississippi Community College Board or individual community or junior colleges on how to expend other funds, aside from funds appropriated to the Mississippi Workforce Enhancement Training Fund and Mississippi Works Fund, appropriated or received for workforce training. The Mississippi Office of Workforce Development, Mississippi Community College Board, individual community or junior colleges, State Workforce Investment Board and other agencies implementing or coordinating state-funded workforce development programs under state law shall cooperate with each other to promote effective workforce training in Mississippi, under the direction of the office. Any subsequent changes to these performance measures shall also be reported to the Governor, Lieutenant Governor, Speaker of the House, and members of the Legislature. A performance report for each training project and community college, based upon these measures, shall be submitted annually to the Governor, Lieutenant Governor, Speaker of the House, and members of the Legislature.
(ii) Except as otherwise provided in this paragraph (e), all funds deposited into the Mississippi Office of Workforce Development Fund shall be used for any of the following purposes: administration of State Workforce Investment Board business, the Office of Workforce Development, grants related to training, the Mississippi K-12 Workforce Development Grant Program, and other projects as determined appropriate by the Office of Workforce Development. Any funds remaining in the State Workforce Investment board bank account on June 30, 2023, shall be transferred to the Mississippi Office of Workforce Development Fund.
(iii) All funds deposited into the Mississippi Department of Employment Security Mississippi Works Fund shall be disbursed exclusively by the Executive Director of the Mississippi Department of Employment Security, in accordance with the rules and regulations promulgated by the Office of Workforce Development, in support of workforce training activities approved by the Mississippi Office of Workforce Development in support of economic development activities. Funds allocated by the executive director under this subparagraph (iii) shall only be utilized for the training of unemployed persons, for immediate training needs for the net new jobs created by an employer, for the retention of jobs, to create a work-ready applicant pool of Mississippians with credentials and/or postsecondary education in accordance with the state's Workforce Investment and Opportunity Act plan, or for the support of local economic and community development activities related to workforce development in the state. The Mississippi Office of Workforce Development, in collaboration with the Mississippi Public Community College System and its partners, shall be the primary entity to facilitate training. Training conducted utilizing these Mississippi Works funds may be subject to a minimal administrative fee of not more than five percent (5%) to be paid from the Mississippi Works Fund as authorized by the Mississippi Office of Workforce Development. All costs associated with the administration of these funds shall be reimbursed to the Mississippi Department of Employment Security from the Mississippi Works Fund.
(iv) 1. The Department of Employment Security shall be the fiscal agent for the receipt and disbursement of all funds remaining in the State Workforce Investment Board bank account, subject to the administrative oversight of the Office of Workforce Development. The Mississippi Department of Employment Security shall be the fiscal agent for all funds appropriated to it for use by the Office of Workforce Development.
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The Office of Workforce Development, in coordination with the Mississippi Department of Employment Security as fiscal agent, shall ensure that any funds expended for contractual services rendered to the Office of Workforce Development over Five Thousand Dollars ($5,000.00) shall be paid only to service providers who have been selected on a competitive basis. Any contract for services entered into using funds appropriated to the Mississippi Department of Employment Security for the Office of Workforce Development shall meet the requirements established in policies approved by the State Workforce Investment Board's executive committee deemed to be practical, feasible and in the public interest.
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Any commodities over Five Thousand Dollars ($5,000.00) procured for the office to further its purpose shall be procured competitively, in accordance with office policies approved by the State Workforce Investment Board's executive committee deemed to be practical, feasible and in the public interest.
(3)(a)(i) Mississippi Workforce Enhancement Training contributions and Mississippi Office of Workforce Development contributions shall be collected for calendar years after calendar year 2016 at a rate of twenty one-hundredths percent (.20%), based upon taxable wages, of which fifteen one-hundredths percent (.15%) shall be the Workforce Enhancement Training contribution, one-hundredths of one percent (.01%) shall be the Mississippi Office of Workforce Development contribution and four one-hundredths percent (.04%) shall be the Mississippi Works contribution. The Mississippi Works contribution shall be collected for calendar years in which the general experience ratio, adjusted on the basis of the trust fund adjustment factor and reduced by fifty percent (50%), results in a general experience rate of less than two-tenths percent (.2%). In all other years the Mississippi Works contribution shall not be in effect.
(ii) The Mississippi Workforce Enhancement Training Fund contribution, the Mississippi Office of Workforce Development Fund contribution and the Mississippi Works contribution shall be in addition to the general experience rate plus the individual experience rate of all employers but shall not be charged to reimbursing or rate-paying political subdivisions or institutions of higher learning, or reimbursing nonprofit organizations, as described in Sections 71-5-357 and 71-5-359.
(b) All Mississippi Workforce Enhancement Training contributions, Mississippi Office of Workforce Development contributions and Mississippi Works contributions collected shall be deposited initially into the Mississippi Department of Employment Security bank account for clearing contribution collections and shall within two (2) business days be transferred to the Workforce Investment and Training Holding Account. Any Mississippi Workforce Enhancement Training Fund and/or Mississippi Office of Workforce Development Fund and/or Mississippi Works Fund transactions from the Mississippi Department of Employment Security bank account for clearing contribution collections that are deposited into the Workforce Investment and Training Fund Holding Account and are not honored by a financial institution will be transferred back to the Mississippi Department of Employment Security bank account for clearing contribution collections out of funds in the Mississippi Workforce Investment and Training Fund Holding Account.
(c) Suspension of the Workforce Enhancement Training Fund contributions required pursuant to this chapter shall occur if the insured unemployment rate exceeds an average of five and five-tenths percent (5.5%) for the three (3) consecutive months immediately preceding the effective date of the new rate year following such occurrence and shall remain suspended throughout the duration of that rate year. Such suspension shall continue until such time as the three (3) consecutive months immediately preceding the effective date of the next rate year that has an insured unemployment rate of less than an average of four and five-tenths percent (4.5%). Upon such occurrence, reactivation shall be effective upon the first day of the rate year following the event that lifts suspension and shall be in effect for that year and shall continue until such time as a subsequent suspension event as described in this chapter occurs.
(d) Notwithstanding any other provision contained herein, contribution collections for the Mississippi Office of Workforce Development Fund, Mississippi Works Fund and Mississippi Workforce Enhancement Training Fund shall not be suspended, under any circumstances, for tax rate year 2021, and the resulting contribution rate of twenty one-hundredths percent (.20%) shall be added to the employer's general and individual experience rate to obtain the total unemployment insurance rate for 2021.
(4) All collections due or accrued prior to any suspension of the Mississippi Workforce Enhancement Training Fund will be collected based upon the law at the time the contributions accrued, regardless of when they are actually collected.
§ 71-5-355
(1) As used in this section, the following words and phrases shall have the following meanings, unless the context clearly requires otherwise:
(a) “Tax year” means any period beginning on January 1 and ending on December 31 of a year.
(b) “Computation date” means June 30 of any calendar year immediately preceding the tax year during which the particular contribution rates are effective.
(c) “Effective date” means January 1 of the tax year.
(d) Except as hereinafter provided, “payroll” means the total of all wages paid for employment by an employer as defined in Section 71-5-11, subsection H, plus the total of all remuneration paid by such employer excluded from the definition of wages by Section 71-5-351. For the computation of modified rates, “payroll” means the total of all wages paid for employment by an employer as defined in Section 71-5-11, subsection H.
(e) For the computation of modified rates, “eligible employer” means an employer whose experience-rating record has been chargeable with benefits throughout the thirty-six (36) consecutive calendar-month period ending on the computation date, except that any employer who has not been subject to the Mississippi Employment Security Law for a period of time sufficient to meet the thirty-six (36) consecutive calendar-month requirement shall be an eligible employer if his or her experience-rating record has been chargeable throughout not less than the twelve (12) consecutive calendar-month period ending on the computation date. No employer shall be considered eligible for a contribution rate less than five and four-tenths percent (5.4%) with respect to any tax year, who has failed to file any two (2) quarterly reports within the qualifying period by September 30 following the computation date. No employer or employing unit shall be eligible for a contribution rate of less than five and four-tenths percent (5.4%) for the tax year in which the employing unit is found by the department to be in violation of Section 71-5-19(2) or (3) and for the next two (2) succeeding tax years. No representative of such employing unit who was a party to a violation as described in Section 71-5-19(2) or (3), if such representative was or is an employing unit in this state, shall be eligible for a contribution rate of less than five and four-tenths percent (5.4%) for the tax year in which such violation was detected by the department and for the next two (2) succeeding tax years.
(f) With respect to any tax year, “reserve ratio” means the ratio which the total amount available for the payment of benefits in the Unemployment Compensation Fund, excluding any amount which has been credited to the account of this state under Section 903 of the Social Security Act, as amended, and which has been appropriated for the expenses of administration pursuant to Section 71-5-457 whether or not withdrawn from such account, on October 31 (close of business) of each calendar year bears to the aggregate of the taxable payrolls of all employers for the twelve (12) calendar months ending on June 30 next preceding.
(g) “Modified rates” means the rates of employer unemployment insurance contributions determined under the provisions of this chapter and the rates of newly subject employers, as provided in Section 71-5-353.
(h) For the computation of modified rates, “qualifying period” means a period of not less than the thirty-six (36) consecutive calendar months ending on the computation date throughout which an employer's experience-rating record has been chargeable with benefits; except that with respect to any eligible employer who has not been subject to this article for a period of time sufficient to meet the thirty-six (36) consecutive calendar-month requirement, “qualifying period” means the period ending on the computation date throughout which his or her experience-rating record has been chargeable with benefits, but in no event less than the twelve (12) consecutive calendar-month period ending on the computation date throughout which his or her experience-rating record has been so chargeable.
(i) The “exposure criterion” (EC) is defined as the cash balance of the Unemployment Compensation Fund which is available for the payment of benefits as of November 16 of each calendar year or the next working day if November 16 falls on a holiday or a weekend, divided by the total wages, exclusive of wages paid by all state agencies, all political subdivisions, reimbursable nonprofit corporations, and tax-exempt public service employment, for the twelve-month period ending June 30 immediately preceding such date. The EC shall be computed to four (4) decimal places and rounded up if any fraction remains. Notwithstanding any other provision contained herein, the date for determining the cash balance of the Unemployment Compensation Fund which is available for the payment of benefits for the calendar years 2020 and 2021 shall be December 31.
(j) The “cost rate criterion” (CRC) is defined as follows: Beginning with January 1974, the benefits paid for the twelve-month period ending December 1974 are summed and divided by the total wages for the twelve-month period ending on June 30, 1975. Similar ratios are computed by subtracting the earliest month's benefit payments and adding the benefits of the next month in the sequence and dividing each sum of twelve (12) months' benefits by the total wages for the twelve-month period ending on the June 30 which is nearest to the final month of the period used to compute the numerator. If December is the final month of the period used to compute the numerator, then the twelve-month period ending the following June 30 will be used for the denominator. Benefits and total wages used in the computation of the cost rate criterion shall exclude all benefits and total wages applicable to state agencies, political subdivisions, reimbursable nonprofit corporations, and tax-exempt PSE employment.
The CRC shall be computed as the average for the highest monthly value of the cost rate criterion computations during each of the economic cycles since the calendar year 1974 as defined by the National Bureau of Economic Research. The CRC shall be computed to four (4) decimal places and any remainder shall be rounded up.
The CRC shall be adjusted only through annual computations and additions of future economic cycles.
(k) “Size of fund index” (SOFI) is defined as the ratio of the exposure criterion (EC) to the cost rate criterion (CRC). The target size of fund index will be fixed at 1.0. If the insured unemployment rate (IUR) exceeds a four and five-tenths percent (4.5%) average for the most recent completed July to June period, the target SOFI will be .8 and will remain at that level until the computed SOFI (the average exposure criterion of the current year and the preceding year divided by the average cost rate criterion) equals 1.0 or the average IUR falls to four and five-tenths percent (4.5%) or less for any period July to June. However, if the IUR falls below two and five-tenths percent (2.5%) for any period July to June the target SOFI shall be 1.2 until such time as the computed SOFI is equal to or greater than 1.0 or the IUR is equal to or greater than two and five-tenths percent (2.5%), at which point the target SOFI shall return to 1.0.
(l) No employer's unemployment contribution general experience rate plus individual unemployment experience rate shall exceed five and four-tenths percent (5.4%). Accrual rules shall apply for purposes of computing contribution rates including associated functions.
(m) The term “general experience rate” has the same meaning as the minimum tax rate.
(2) Modified rates:
(a) For any tax year, when the reserve ratio on the preceding November 16, in the case of any tax year, equals or exceeds three percent (3%), the modified rates, as hereinafter prescribed, shall be in effect. In computation of this reserve ratio, any remainder shall be rounded down.
(b) Modified rates shall be determined for the tax year for each eligible employer on the basis of his or her experience-rating record in the following manner:
(i) The department shall maintain an experience-rating record for each employer. Nothing in this chapter shall be construed to grant any employer or individuals performing services for him or her any prior claim or rights to the amounts paid by the employer into the fund.
(ii) Benefits paid to an eligible individual shall be charged against the experience-rating record of his or her base period employers in the proportion to which the wages paid by each base period employer bears to the total wages paid to the individual by all the base period employers, provided that benefits shall not be charged to an employer's experience-rating record if the department finds that the individual:
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Voluntarily left the employ of such employer without good cause attributable to the employer or to accept other work;
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Was discharged by such employer for misconduct connected with his or her work;
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Refused an offer of suitable work by such employer without good cause, and the department further finds that such benefits are based on wages for employment for such employer prior to such voluntary leaving, discharge or refusal of suitable work, as the case may be;
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Had base period wages which included wages for previously uncovered services as defined in Section 71-5-511(e) to the extent that the Unemployment Compensation Fund is reimbursed for such benefits pursuant to Section 121 of Public Law 94-566;
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Extended benefits paid under the provisions of Section 71-5-541 which are not reimbursable from federal funds shall be charged to the experience-rating record of base period employers;
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Is still working for such employer on a regular part-time basis under the same employment conditions as hired. Provided, however, that benefits shall be charged against an employer if an eligible individual is paid benefits who is still working for such employer on a part-time “as-needed” basis;
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Was hired to replace a United States serviceman or servicewoman called into active duty and was laid off upon the return to work by that serviceman or servicewoman, unless such employer is a state agency or other political subdivision or instrumentality of the state;
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Was paid benefits during any week while in training with the approval of the department, under the provisions of Section 71-5-513B, or for any week while in training approved under Section 236(a)(1) of the Trade Act of 1974, under the provisions of Section 71-5-513C;
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Is not required to serve the one-week waiting period as described in Section 71-5-505(2). In that event, only the benefits paid in lieu of the waiting period week may be noncharged; or
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Was paid benefits as a result of a fraudulent claim, provided notification was made to the Mississippi Department of Employment Security in writing or by email by the employer, within ten (10) days of the mailing of the notice of claim filed to the employer's last-known address.
(iii) Notwithstanding any other provision contained herein, an employer shall not be noncharged when the department finds that the employer or the employer's agent of record was at fault for failing to respond timely or adequately to the request of the department for information relating to an unemployment claim that was subsequently determined to be improperly paid, unless the employer or the employer's agent of record shows good cause for having failed to respond timely or adequately to the request of the department for information. For purposes of this subparagraph “good cause” means an event that prevents the employer or employer's agent of record from timely responding, and includes a natural disaster, emergency or similar event, or an illness on the part of the employer, the employer's agent of record, or their staff charged with responding to such inquiries when there is no other individual who has the knowledge or ability to respond. Any agency error that resulted in a delay in, or the failure to deliver notice to, the employer or the employer's agent of record shall also be considered good cause for purposes of this subparagraph.
(iv) The department shall compute a benefit ratio for each eligible employer, which shall be the quotient obtained by dividing the total benefits charged to his or her experience-rating record during the period his or her experience-rating record has been chargeable, but not less than the twelve (12) consecutive calendar-month period nor more than the thirty-six (36) consecutive calendar-month period ending on the computation date, by his or her total taxable payroll for the same period on which all unemployment insurance contributions due have been paid on or before the September 30 immediately following the computation date. Such benefit ratio shall be computed to the tenth of a percent (.1%), rounding any remainder to the next higher tenth.
(v) 1. The unemployment insurance contribution rate for each eligible employer shall be the sum of two (2) rates: his or her individual experience rate in the range from zero percent (0%) to five and four-tenths percent (5.4%), plus a general experience rate. In no event shall the resulting unemployment insurance rate be in excess of five and four-tenths percent (5.4%), however, it is the intent of this section to provide the ability for employers to have a tax rate, the general experience rate plus the individual experience rate, of up to five and four-tenths percent (5.4%).
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The employer's individual experience rate shall be equal to his or her benefit ratio as computed under paragraph (b)(iv) of this subsection (2).
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The general experience rate shall be determined in the following manner: The department shall determine annually, for the thirty-six (36) consecutive calendar-month period ending on the computation date, the amount of benefits which were not charged to the record of any employer and of benefits which were ineffectively charged to the employer's experience-rating record. For the purposes of this item 3, the term “ineffectively charged benefits” shall include:
a. The total of the amounts of benefits charged to the experience-rating records of all eligible employers which caused their benefit ratios to exceed five and four-tenths percent (5.4%);
b. The total of the amounts of benefits charged to the experience-rating records of all ineligible employers which would cause their benefit ratios to exceed five and four-tenths percent (5.4%) if they were eligible employers; and
c. The total of the amounts of benefits charged or chargeable to the experience-rating record of any employer who has discontinued his or her business or whose coverage has been terminated within such period; provided, that solely for the purposes of determining the amounts of ineffectively charged benefits as herein defined, a “benefit ratio” shall be computed for each ineligible employer, which shall be the quotient obtained by dividing the total benefits charged to his or her experience-rating record throughout the period ending on the computation date, during which his or her experience-rating record has been chargeable with benefits, by his or her total taxable payroll for the same period on which all unemployment insurance contributions due have been paid on or before the September 30 immediately following the computation date; and provided further, that such benefit ratio shall be computed to the tenth of one percent (.1%) and any remainder shall be rounded to the next higher tenth.
The ratio of the sum of these amounts (subsection (2)(b)(v)3a, b and c) to the taxable wages paid during the same period divided by all eligible employers whose benefit ratio did not exceed five and four-tenths percent (5.4%), computed to the next higher tenth of one percent (.1%), shall be the general experience rate; however, the general experience rate for rate year 2014 shall be two-tenths of one percent (.2%) and to that will be added the employer's individual experience rate for the total unemployment insurance rate.
- a. Except as otherwise provided in this item 4, the general experience rate shall be adjusted by use of the size of fund index factor. This factor may be positive or negative, and shall be determined as follows: From the target SOFI, as defined in subsection (1)(k) of this section, subtract the simple average of the current and preceding years' exposure criterions divided by the cost rate criterion, as defined in subsection (1)(j) of this section. The result is then multiplied by the product of the CRC, as defined in subsection (1)(j) of this section, and total wages for the twelve-month period ending June 30 divided by the taxable wages for the twelve-month period ending June 30. This is the percentage positive or negative added to the general experience rate. The sum of the general experience rate and the trust fund adjustment factor shall be multiplied by fifty percent (50%) and this product shall be computed to one (1) decimal place, and rounded to the next higher tenth.
b. Notwithstanding the minimum rate provisions as set forth in subsection (1)(l) of this section, the general experience rate of all employers shall be reduced by seven one-hundredths of one percent (.07%) for calendar year 2013 only.
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The general experience rate shall be zero percent (0%) unless the general experience ratio for any tax year as computed and adjusted on the basis of the trust fund adjustment factor and reduced by fifty percent (50%) is an amount equal to or greater than two-tenths of one percent (.2%), then the general experience rate shall be the computed general experience ratio and adjusted on the basis of the trust fund adjustment factor and reduced by fifty percent (50%); however, in no case shall the sum of the general experience plus the individual experience unemployment insurance rate exceed five and four-tenths percent (5.4%). For rate years subsequent to 2014, Mississippi Workforce Enhancement Training contribution rate, and/or Mississippi Office of Workforce Development contribution rate, and/or Mississippi Works contribution rate, when in effect, shall be added to the unemployment contribution rate, regardless of whether the addition of this contribution rate causes the total contribution rate for the employer to exceed five and four-tenths percent (5.4%).
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The department shall include in its annual rate notice to employers a brief explanation of the elements of the general experience rate, and shall include in its regular publications an annual analysis of benefits not charged to the record of any employer, and of the benefit experience of employers by industry group whose benefit ratio exceeds four percent (4%), and of any other factors which may affect the size of the general experience rate.
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Notwithstanding any other provision contained herein, the general experience rate for calendar year 2021 shall be zero percent (0%). Charges attributed to each employer's individual experience rate for the period March 8, 2020, through June 30, 2020, will not impact the employer's individual experience rate calculations for purposes of calculating the total unemployment insurance rate for 2021 and the two (2) subsequent tax rate years. Moreover, charges attributed to each employer's individual experience rate for the period July 1, 2020, through December 31, 2020, will not impact the employer's individual experience rate calculations for purposes of calculating the total unemployment insurance rate for 2022 and the two (2) subsequent tax rate years. Furthermore, noncharges as defined hereinabove caused by the COVID-19 pandemic will not be used for the purpose of calculating the general experience rate.
(vi) When any employing unit in any manner succeeds to or acquires the organization, trade, business or substantially all the assets thereof of an employer, excepting any assets retained by such employer incident to the liquidation of his or her obligations, whether or not such acquiring employing unit was an employer within the meaning of Section 71-5-11, subsection H, prior to such acquisition, and continues such organization, trade or business, the experience-rating and payroll records of the predecessor employer shall be transferred as of the date of acquisition to the successor employer for the purpose of rate determination.
(vii) When any employing unit succeeds to or acquires a distinct and severable portion of an organization, trade or business, the experience-rating and payroll records of such portion, if separately identifiable, shall be transferred to the successor upon:
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The mutual consent of the predecessor and the successor;
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Approval of the department;
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Continued operation of the transferred portion by the successor after transfer; and
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The execution and the filing with the department by the predecessor employer of a waiver relinquishing all rights to have the experience-rating and payroll records of the transferred portion used for the purpose of determining modified rates of contribution for such predecessor.
(viii) If the successor was an employer subject to this chapter prior to the date of acquisition, it shall continue to pay unemployment insurance contributions at the rate applicable to it from the date the acquisition occurred until the end of the then current tax year. If the successor was not an employer prior to the date of acquisition, it shall pay unemployment insurance contributions at the rate applicable to the predecessor or, if more than one (1) predecessor and the same rate is applicable to both, the rate applicable to the predecessor or predecessors, from the date the acquisition occurred until the end of the then current tax year. If the successor was not an employer prior to the date the acquisition occurred and simultaneously acquires the businesses of two (2) or more employers to whom different rates of unemployment insurance contributions are applicable, it shall pay unemployment insurance contributions from the date of the acquisition until the end of the current tax year at a rate computed on the basis of the combined experience-rating and payroll records of the predecessors as of the computation date for such tax year. In all cases the rate of unemployment insurance contributions applicable to such successor for each succeeding tax year shall be computed on the basis of the combined experience-rating and payroll records of the successor and the predecessor or predecessors.
(ix) The department shall notify each employer quarterly of the benefits paid and charged to his or her experience-rating record; and such notification, in the absence of an application for redetermination filed within thirty (30) days after the date of such notice, shall be final, conclusive and binding upon the employer for all purposes. A redetermination, made after notice and opportunity for a fair hearing, by a hearing officer designated by the department who shall consider and decide these and related applications and protests; and the finding of fact in connection therewith may be introduced into any subsequent administrative or judicial proceedings involving the determination of the rate of unemployment insurance contributions of any employer for any tax year, and shall be entitled to the same finality as is provided in this subsection with respect to the findings of fact in proceedings to redetermine the contribution rate of an employer.
(x) The department shall notify each employer of his or her rate of contribution as determined for any tax year as soon as reasonably possible after September 1 of the preceding year. Such determination shall be final, conclusive and binding upon such employer unless, within thirty (30) days after the date of such notice to his or her last-known address, the employer files with the department an application for review and redetermination of his or her contribution rate, setting forth his or her reasons therefor. If the department grants such review, the employer shall be promptly notified thereof and shall be afforded an opportunity for a fair hearing by a hearing officer designated by the department who shall consider and decide these and related applications and protests; but no employer shall be allowed, in any proceeding involving his or her rate of unemployment insurance contributions or contribution liability, to contest the chargeability to his or her account of any benefits paid in accordance with a determination, redetermination or decision pursuant to Sections 71-5-515 through 71-5-533 except upon the ground that the services on the basis of which such benefits were found to be chargeable did not constitute services performed in employment for him or her, and then only in the event that he or she was not a party to such determination, redetermination, decision or to any other proceedings provided in this chapter in which the character of such services was determined. The employer shall be promptly notified of the denial of this application or of the redetermination, both of which shall become final unless, within ten (10) days after the date of notice thereof, there shall be an appeal to the department itself. Any such appeal shall be on the record before said designated hearing officer, and the decision of said department shall become final unless, within thirty (30) days after the date of notice thereof to the employer's last-known address, there shall be an appeal to the Circuit Court of the First Judicial District of Hinds County, Mississippi, in accordance with the provisions of law with respect to review of civil causes by certiorari.
(3) Notwithstanding any other provision of law, the following shall apply regarding assignment of rates and transfers of experience:
(a)(i) If an employer transfers its trade or business, or a portion thereof, to another employer and, at the time of the transfer, there is substantially common ownership, management or control of the two (2) employers, then the unemployment experience attributable to the transferred trade or business shall be transferred to the employer to whom such business is so transferred. The rates of both employers shall be recalculated and made effective on January 1 of the year following the year the transfer occurred.
(ii) If, following a transfer of experience under subparagraph (i) of this paragraph (a), the department determines that a substantial purpose of the transfer of trade or business was to obtain a reduced liability of unemployment insurance contributions, then the experience-rating accounts of the employers involved shall be combined into a single account and a single rate assigned to such account.
(b) Whenever a person who is not an employer or an employing unit under this chapter at the time it acquires the trade or business of an employer, the unemployment experience of the acquired business shall not be transferred to such person if the department finds that such person acquired the business solely or primarily for the purpose of obtaining a lower rate of unemployment insurance contributions. Instead, such person shall be assigned the new employer rate under Section 71-5-353, unless assignment of the new employer rate results in an increase of less than two percent (2%), in which case such person would be assigned the new employer rate plus an additional two percent (2%) penalty for the rate year. In determining whether the business was acquired solely or primarily for the purpose of obtaining a lower rate of unemployment insurance contributions, the department shall use objective factors which may include the cost of acquiring the business, whether the person continued the business enterprise of the acquired business, how long such business enterprise was continued, or whether a substantial number of new employees were hired for performance of duties unrelated to the business activity conducted prior to acquisition.
(c)(i) If a person knowingly violates or attempts to violate paragraph (a) or (b) of this subsection or any other provision of this chapter related to determining the assignment of a contribution rate, or if a person knowingly advises another person in a way that results in a violation of such provision, the person shall be subject to the following penalties:
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If the person is an employer, then such employer shall be assigned the highest rate assignable under this chapter for the rate year during which such violation or attempted violation occurred and the three (3) rate years immediately following this rate year. However, if the person's business is already at such highest rate for any year, or if the amount of increase in the person's rate would be less than two percent (2%) for such year, then the person's tax rate shall be increased by two percent (2%) for such year. The penalty rate will apply to the successor business as well as the related entity from which the employees were transferred in an effort to obtain a lower rate of unemployment insurance contributions.
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If the person is not an employer, such person shall be subject to a civil money penalty of not more than Five Thousand Dollars ($5,000.00). Each such transaction for which advice was given and each occurrence or reoccurrence after notification being given by the department shall be a separate offense and punishable by a separate penalty. Any such fine shall be deposited in the penalty and interest account established under Section 71-5-114.
(ii) For purposes of this paragraph (c), the term “knowingly” means having actual knowledge of or acting with deliberate ignorance or reckless disregard for the prohibition involved.
(iii) For purposes of this paragraph (c), the term “violates or attempts to violate” includes, but is not limited to, intent to evade, misrepresentation or willful nondisclosure.
(iv) In addition to the penalty imposed by subparagraph (i) of this paragraph (c), any violation of this subsection may be punishable by a fine of not more than Ten Thousand Dollars ($10,000.00) or by imprisonment for not more than five (5) years, or by both such fine and imprisonment. This subsection shall prohibit prosecution under any other criminal statute of this state.
(d) The department shall establish procedures to identify the transfer or acquisition of a business for purposes of this subsection.
(e) For purposes of this subsection:
(i) “Person” has the meaning given such term by Section 7701(a)(1) of the Internal Revenue Code of 1986; and
(ii) “Employing unit” has the meaning as set forth in Section 71-5-11.
(f) This subsection shall be interpreted and applied in such a manner as to meet the minimum requirements contained in any guidance or regulations issued by the United States Department of Labor.
§ 71-5-357
Benefits paid to employees of nonprofit organizations shall be financed in accordance with the provisions of this section. For the purpose of this section, a nonprofit organization is an organization (or group of organizations) described in Section 501(c)(3) of the Internal Revenue Code of 1954 which is exempt from income tax under Section 501(a) of such code (26 USCS Section 501).
(a) Any nonprofit organization which, under Section 71-5-11, subsection H(3), is or becomes subject to this chapter shall pay contributions under the provisions of Sections 71-5-351 through 71-5-355 unless it elects, in accordance with this paragraph, to pay to the department for the unemployment fund an amount equal to the amount of regular benefits and one-half ( 1/2 ) of the extended benefits paid, that is attributable to service in the employ of such nonprofit organization, to individuals for weeks of unemployment which begin during the effective period of such election.
(i) Any nonprofit organization which becomes subject to this chapter may elect to become liable for payments in lieu of contributions for a period of not less than twelve (12) months, beginning with the date on which such subjectivity begins, by filing a written notice of its election with the department not later than thirty (30) days immediately following the date of the determination of such subjectivity.
(ii) Any nonprofit organization which makes an election in accordance with subparagraph (i) of this paragraph will continue to be liable for payments in lieu of contributions unless it files with the department a written termination notice not later than thirty (30) days prior to the beginning of the tax year for which such termination shall first be effective.
(iii) Any nonprofit organization which has been paying contributions under this chapter may change to a reimbursable basis by filing with the department, not later than thirty (30) days prior to the beginning of any tax year, a written notice of election to become liable for payments in lieu of contributions. Such election shall not be terminable by the organization for that and the next tax year.
(iv) The department may for good cause extend the period within which a notice of election or a notice of termination must be filed, and may permit an election to be retroactive.
(v) The department, in accordance with such regulations as it may prescribe, shall notify each nonprofit organization of any determination which it may make of its status as an employer, of the effective date of any election which it makes and of any termination of such election. Such determinations shall be subject to reconsideration, appeal and review in accordance with the provisions of Sections 71-5-351 through 71-5-355.
(b) Payments in lieu of contributions shall be made in accordance with the provisions of subparagraph (i) of this paragraph.
(i) At the end of each calendar quarter, or at the end of any other period as determined by the department, the department shall bill each nonprofit organization (or group of such organizations) which has elected to make payments in lieu of contributions, for an amount equal to the full amount of regular benefits plus one-half ( 1/2 ) of the amount of extended benefits paid during such quarter or other prescribed period that is attributable to service in the employ of such organization.
(ii) Payment of any bill rendered under subparagraph (i) of this paragraph shall be made not later than forty-five (45) days after such bill was delivered to the nonprofit organization, unless there has been an application for review and redetermination in accordance with subparagraph (v) of this paragraph.
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All of the enforcement procedures for the collection of delinquent contributions contained in Sections 71-5-363 through 71-5-383 shall be applicable in all respects for the collection of delinquent payments due by nonprofit organizations who have elected to become liable for payments in lieu of contributions.
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If any nonprofit organization is delinquent in making payments in lieu of contributions, the department may terminate such organization's election to make payments in lieu of contributions as of the beginning of the next tax year, and such termination shall be effective for the balance of such tax year.
(iii) Payments made by any nonprofit organization under the provisions of this paragraph shall not be deducted or deductible, in whole or in part, from the remuneration of individuals in the employ of the organization.
(iv) Payments due by employers who elect to reimburse the fund in lieu of contributions as provided in this paragraph may not be noncharged under any condition. The reimbursement must be on a dollar-for-dollar basis (One Dollar ($1.00) reimbursement for each dollar paid in benefits) in every case, so that the trust fund shall be reimbursed in full, such reimbursement to include, but not be limited to, benefits or payments erroneously or incorrectly paid, or paid as a result of a determination of eligibility which is subsequently reversed, or paid as a result of claimant fraud. However, political subdivisions who are reimbursing employers may elect to pay to the fund an amount equal to five-tenths percent (.5%) through December 31, 2010, and shall pay twenty-five one-hundredths percent (.25%) thereafter of the taxable wages paid during the calendar year with respect to employment, and those employers who so elect shall be relieved of liability for reimbursement of benefits paid under the same conditions that benefits are not charged to the experience-rating record of a contributing employer as provided in Section 71-5-355(2)(b)(ii) other than Clause 5 thereof. Benefits paid in such circumstances for which reimbursing employers are relieved of liability for reimbursement shall not be considered attributable to service in the employment of such reimbursing employer.
(v) The amount due specified in any bill from the department shall be conclusive on the organization unless, not later than fifteen (15) days after the bill was delivered to it, the organization files an application for redetermination by the department, setting forth the grounds for such application or appeal. The department shall promptly review and reconsider the amount due specified in the bill and shall thereafter issue a redetermination in any case in which such application for redetermination has been filed. Any such redetermination shall be conclusive on the organization unless, not later than fifteen (15) days after the redetermination was delivered to it, the organization files an appeal to the Circuit Court of the First Judicial District of Hinds County, Mississippi, in accordance with the provisions of law with respect to review of civil causes by certiorari.
(vi) Past-due payments of amounts in lieu of contributions shall be subject to the same interest and penalties that, pursuant to Section 71-5-363, apply to past-due contributions.
(c) Each employer that is liable for payments in lieu of contributions shall pay to the department for the fund the amount of regular benefits plus the amount of one-half ( 1/2 ) of extended benefits paid are attributable to service in the employ of such employer. If benefits paid to an individual are based on wages paid by more than one (1) employer and one or more of such employers are liable for payments in lieu of contributions, the amount payable to the fund by each employer that is liable for such payments shall be determined in accordance with the provisions of subparagraph (i) or subparagraph (ii) of this paragraph.
(i) If benefits paid to an individual are based on wages paid by one or more employers that are liable for payment in lieu of contributions and on wages paid by one or more employers who are liable for contributions, the amount of benefits payable by each employer that is liable for payments in lieu of contributions shall be an amount which bears the same ratio to the total benefits paid to the individual as the total base period wages paid to the individual by such employer bear to the total base period wages paid to the individual by all of his base period employers.
(ii) If benefits paid to an individual are based on wages paid by two (2) or more employers that are liable for payments in lieu of contributions, the amount of benefits payable by each such employer shall be an amount which bears the same ratio to the total benefits paid to the individual as the total base period wages paid to the individual by such employer bear to the total base period wages paid to the individual by all of his base period employers.
(d) In the discretion of the department, any nonprofit organization that elects to become liable for payments in lieu of contributions shall be required to execute and file with the department a surety bond approved by the department, or it may elect instead to deposit with the department money or securities. The amount of such bond or deposit shall be determined in accordance with the provisions of this paragraph.
(i) The amount of the bond or deposit required by paragraph (d) shall be equal to two and seven-tenths percent (2.7%) thereafter to December 31, 2010, and one and thirty-five one-hundredths percent (1.35%) thereafter, of the organization's taxable wages paid for employment as defined in Section 71-5-11, subsection I(4), for the four (4) calendar quarters immediately preceding the effective date of the election, the renewal date in the case of a bond, or the biennial anniversary of the effective date of election in the case of a deposit of money or securities, whichever date shall be most recent and applicable. If the nonprofit organization did not pay wages in each of such four (4) calendar quarters, the amount of the bond or deposit shall be as determined by the department.
(ii) Any bond deposited under paragraph (d) shall be in force for a period of not less than two (2) tax years and shall be renewed with the approval of the department at such times as the department may prescribe, but not less frequently than at intervals of two (2) years as long as the organization continues to be liable for payments in lieu of contributions. The department shall require adjustments to be made in a previously filed bond as it deems appropriate. If the bond is to be increased, the adjusted bond shall be filed by the organization within thirty (30) days of the date notice of the required adjustment was delivered to it. Failure by any organization covered by such bond to pay the full amount of payments in lieu of contributions when due, together with any applicable interest and penalties provided in paragraph (b)(v) of this section, shall render the surety liable on the bond to the extent of the bond, as though the surety was such organization.
(iii) Any deposit of money or securities in accordance with paragraph (d) shall be retained by the department in an escrow account until liability under the election is terminated, at which time it shall be returned to the organization, less any deductions as hereinafter provided. The department may deduct from the money deposited under paragraph (d) by a nonprofit organization, or sell the securities it has so deposited, to the extent necessary to satisfy any due and unpaid payments in lieu of contributions and any applicable interest and penalties provided for in paragraph (b)(v) of this section. The department shall require the organization, within thirty (30) days following any deduction from a money deposit or sale of deposited securities under the provisions hereof, to deposit sufficient additional money or securities to make whole the organization's deposit at the prior level. Any cash remaining from the sale of such securities shall be a part of the organization's escrow account. The department may, at any time, review the adequacy of the deposit made by any organization. If, as a result of such review, it determines that an adjustment is necessary, it shall require the organization to make additional deposit within thirty (30) days of notice of its determination or shall return to it such portion of the deposit as it no longer considers necessary, whichever action is appropriate. Disposition of income from securities held in escrow shall be governed by the applicable provisions of the state law.
(iv) If any nonprofit organization fails to file a bond or make a deposit, or to file a bond in an increased amount, or to increase or make whole the amount of a previously made deposit as provided under this subparagraph, the department may terminate such organization's election to make payments in lieu of contributions, and such termination shall continue for not less than the four (4) consecutive calendar-quarter periods beginning with the quarter in which such termination becomes effective; however, the department may extend for good cause the applicable filing, deposit or adjustment period by not more than thirty (30) days.
(v) Group account shall be established according to regulations prescribed by the department.
(e) Any employer which elects to make payments in lieu of contributions into the Unemployment Compensation Fund as provided in this paragraph shall not be liable to make such payments with respect to the benefits paid to any individual whose base period wages include wages for previously uncovered services as defined in Section 71-5-511(e) to the extent that the Unemployment Compensation Fund is reimbursed for such benefits pursuant to Section 121 of Public Law 94-566.
§ 71-5-359
(1) The Department of Finance and Administration shall, in the manner provided in subsection (2) of this section, pay, upon notice issued by the department, to the department for the Unemployment Compensation Fund an amount equal to the regular benefits and one-half ( 1/2 ) of the extended benefits paid that are attributable to service in the employ of a state agency. The amount required to be reimbursed by a certain agency shall be billed to the Department of Finance and Administration and shall be paid from the Employment Compensation Revolving Fund pursuant to subsection (2) of this section not later than thirty (30) days after such bill was sent, unless there has been an application for review and redetermination in accordance with Section 71-5-357(b)(v).
(2) Each agency of state government shall deposit monthly for a period of twenty-four (24) months an amount equal to one-twelfth of one percent ( 1/12 of 1%) of the first Six Thousand Dollars ($6,000.00) paid to each employee thereof during the next preceding year into the Employment Compensation Revolving Fund that is created in the State Treasury. The Department of Finance and Administration shall determine the percentage to be applied to the amount of covered wages paid in order to maintain a balance in the revolving fund of not less than the amount determined by an actuary through an annual actuarial evaluation. The State Treasurer shall invest all funds in the Employment Compensation Revolving Fund and all interest earned shall be credited to the Employment Compensation Revolving Fund.
The reimbursement of benefits paid by the Mississippi Department of Employment Security shall be paid by the Department of Finance and Administration from the Employment Compensation Revolving Fund upon notice from the department; and the Department of Finance and Administration shall issue warrants or may contract for the performance of the duties prescribed by this subsection, and other duties necessarily related thereto.
(3) Any political subdivision of this state shall pay to the department for the unemployment compensation fund an amount equal to the regular benefits and the extended benefits paid that are attributable to service in the employ of such political subdivision unless it elects to make contributions to the unemployment fund as provided in subsection (8) of this section. The amount required to be reimbursed shall be billed and shall be paid as provided in Section 71-5-357, with respect to similar payments for nonprofit organizations.
(4) Each political subdivision, unless it elects to make contributions to the unemployment compensation fund as provided in subsection (8) of this section, shall establish a revolving fund and deposit an amount equal to two percent (2%) of the first Six Thousand Dollars ($6,000.00) paid to each employee thereof during the next preceding year. However, the department shall by regulation establish a procedure to allow reimbursing political subdivisions to elect to maintain the balance in the revolving fund as required under this subsection or to annually execute a surety bond to be approved by the department in an amount not less than two percent (2%) of the covered wages paid during the next preceding year.
(5) In the event any political subdivision becomes delinquent in payments due under this chapter, upon due notice, and upon certification of the delinquency by the department to the Department of Finance and Administration, the Department of Revenue, the Department of Environmental Quality and the Department of Insurance, or any of them, or any other agencies of the State of Mississippi that may be indebted to such delinquent political subdivision, such agencies shall direct the issuance of warrants which in the aggregate shall be the amount of such delinquency payable to the department and drawn upon any funds in the State Treasury which may be available to such political subdivision in satisfaction of any such delinquency. This remedy shall be in addition to any other collection remedies in this chapter or otherwise provided by law.
(6) Payments made by any political subdivision under the provisions of this section shall not be deducted or deductible, in whole or in part, from the remuneration of individuals in the employ of the organization.
(7) Any governmental entity shall not be liable to make payments to the unemployment fund with respect to the benefits paid to any individual whose base period wages include wages for previously uncovered services as defined in Section 71-5-511, subsection (e), to the extent that the Unemployment Compensation Fund is reimbursed for such benefits pursuant to Section 121 of Public Law 94-566.
(8) Any political subdivision of this state may elect to make contributions to the unemployment fund instead of making reimbursement for benefits paid as provided in subsections (3) and (4) of this section. A political subdivision which makes this election shall so notify the department, not later than three (3) months after it is officially organized or is otherwise established, and shall be subject to the provisions of Section 71-5-351, with regard to the payment of contributions. A political subdivision which makes this election shall pay contributions equal to two percent (2%) of taxable wages through calendar year 2010, and one percent (1%) of taxable wages thereafter paid by it during each calendar quarter it is subject to this chapter. The department shall by regulation establish a procedure to allow political subdivisions the option periodically to elect either the reimbursement or the contribution method of financing unemployment compensation coverage.
§ 71-5-361
(1) Except as provided in subsection (3) of this section, any employing unit which is or becomes an employer subject to this chapter within any calendar year shall be deemed to be an employer during the whole of such calendar year.
(2) Except as otherwise provided in subsection (3) of this section:
(a) An employing unit (other than a state hospital, state institution of higher learning, state or state agency or other political subdivision or instrumentality) except as provided in paragraphs (b) and (c) of this subsection, shall cease to be an employer subject to this chapter only as of the first day of January of any calendar year, only if it files with the department on or before the thirty-first day of May of such year a written application for termination of coverage, and the department finds that during the preceding calendar year the employing unit did not pay wages of One Thousand Five Hundred Dollars ($1,500.00) or more in any calendar quarter and that there were no twenty (20) days, each day being in a different week within the preceding calendar year, within which such employing unit employed one or more individuals in employment subject to this chapter, or four (4) or more in the case of nonprofit organizations, except if the department finds that throughout a calendar year an employer has had no employment, it shall cease to be an employer subject to this chapter.
(b) An agricultural employer as defined under Section 71-5-11, subsection H(4)(a) shall cease to be an agricultural employer subject to this chapter only as of the first day of January of any calendar year, only if it files with the department on or before the thirty-first day of May of such year a written application for termination of coverage, and the department finds that during the preceding calendar year the employing unit did not pay for agricultural employment wages as defined in Section 71-5-11, subsection I(6) of Twenty Thousand Dollars ($20,000.00) in any calendar quarter of the preceding calendar year and that there were no twenty (20) days, each day being in a different week, within such calendar year, within which such employing unit employed ten (10) or more individuals in employment subject to this chapter, except if the department finds that throughout a calendar year an employer has had no employment, it shall cease to be an employer subject to this chapter.
(c) A domestic employer, as defined in Section 71-5-11, subsection H(4)(b), shall cease to be an employer subject to this chapter only as of the first day of January of any calendar year, only if it files with the department on or before the thirty-first day of May of such year a written application for termination of coverage, and the department finds that during the preceding calendar year the employing unit did not pay wages for domestic employment of One Thousand Dollars ($1,000.00) or more in any calendar quarter of the preceding calendar year, except if the department finds that throughout a calendar year an employer has had no employment, it shall cease to be an employer subject to this chapter.
(d) For the purpose of this subsection, the two (2) or more employing units mentioned in Section 71-5-11, subsection H(5) or (6), shall be treated as a single employing unit. The department may, of its own motion, cancel and terminate the effect of registrations for purposes of its accounting records in cases where it has found that employing units, duly registered as covered employers under the chapter, have died, ceased business or removed from the state without applying for termination of coverage, provided that the rights of claimants for benefits shall not be affected thereby.
(3)(a) An employing unit, not otherwise subject to this chapter, which files with the department its written election to become an employer subject thereto for not less than two (2) calendar years shall, with the written approval of such election by the department or the executive director, become an employer subject hereto to the same extent as all other employers as of the date stated in such approval, and shall cease to be subject hereto as of January 1 of any calendar year subsequent to such two (2) calendar years only if it files with the department, on or before the thirty-first day of May of such year, a written application for termination of coverage thereunder.
(b) Any employing unit, for which services that do not constitute employment as defined in this chapter are performed, may file with the department a written election that all such services performed by individuals in its employ in one or more distinct establishments or places of business shall be deemed to constitute employment by an employer for all purposes of this chapter for not less than two (2) calendar years. Upon written approval of such election by the department, such services shall be deemed to constitute employment subject to this chapter from and after the date stated in such approval. Such services shall cease to be deemed employment subject hereto as of January 1 of any calendar year subsequent to such two (2) calendar years only if, prior to the thirty-first day of May of such year, such employing unit has filed with the department a written notice to that effect.
(4)(a) Prior to January 1, 1978, any political subdivision of this state may elect to cover under this chapter, for a period of not less than two (2) calendar years, services performed by employees in all of the hospitals and institutions of higher learning, as defined in Section 71-5-11, subsection M or N, operated by such political subdivision. Election is to be made by filing with the department a notice of such election at least thirty (30) days prior to the effective date of such election. The election may exclude any services described in Section 71-5-11, subsection I(5). Any political subdivision electing coverage under this subsection shall make payments in lieu of contributions with respect to benefits attributable to such employment as provided with respect to nonprofit organizations in subsections (b) and (c) of Section 71-5-357.
(b) Prior to January 1, 1978, the provisions in Section 71-5-511, subsection (g) with respect to benefit rights based on service for state and nonprofit institutions of higher learning shall be applicable also to service covered by an election under this section.
(c) Prior to January 1, 1978, the amounts required to be paid in lieu of contributions by any political subdivision under this section shall be billed and payment made as provided in subsections (b) and (c) of Section 71-5-357.
(d) Prior to January 1, 1978, an election under this section, after having been in effect for not less than two (2) calendar years, may be terminated by filing with the department written notice not later than thirty (30) days preceding the last day of the calendar year in which the termination is to be effective. Such termination becomes effective as of the first day of the next ensuing calendar year with respect to services performed on and after that date.
§ 71-5-363
(1) Contributions unpaid on the date on which they are due and payable shall bear interest at the rate of one percent (1%) per month from and after such date until payment plus accrued interest is received by the department, provided that the department may prescribe fair and reasonable general rules pursuant to which such interest shall not accrue during the first calendar year that any employer is subject to this chapter. Interest collected pursuant to this section shall be paid into the Special Employment Security Administration Fund established by Section 71-5-114.
(2) Notwithstanding the provisions of subsection (1) of this section, the executive director or his or her designee within the department shall have the discretion, subject only to federal laws and regulations, to abate interest accrued on past-due contributions or overpayments, in part or in full, when negotiating the settlements of past-due amounts owed to the agency.
§ 71-5-365
If any employer fails to make and file any report as and when required by the terms and provisions of this chapter or by any rule or regulation of the commission for the purpose of determining the amount of contributions due by him or her under this chapter, or if any report which has been filed is deemed by the executive director or his or her designee within the department to be incorrect or insufficient, and such employer, after having been given notice by the executive director or his or her designee within the department to file such report, or a corrected or sufficient report, as the case may be, shall fail to file such report within fifteen (15) days after the date of such notice, the executive director or his or her designee within the department may (a) determine the amount of contributions due from such noncompliant employer on the basis of the best information that may be readily available to the department, which determination shall be prima facie correct, (b) assess such noncompliant employer with the amount of contribution so determined as due, to which amount may be added and assessed by the executive director or his or her designee within the department in his or her discretion, as damages, in an amount equal to ten percent (10%) of the assessed amount, and (c) immediately give notice to such noncompliant employer of such determination, assessment, and penalties, if any, added and assessed, demanding payment of same together with interest, as herein provided, on the amount of contributions owed from the date when same were due and payable. Such determination and assessment by the executive director or his or her designee within the department shall be final at the expiration of fifteen (15) days from the date of such notice thereof demanding payment, unless:
(a) Such employer shall have filed with the department a written protest and petition for a hearing, specifying his or her objections thereto. Upon receipt of such petition within the fifteen (15) days allowed, the department shall fix the time and place for a hearing and shall notify the petitioner thereof. At any hearing held before the department as herein provided, evidence may be offered to support such determination and assessment or to prove that it is incorrect, and the commission shall have all the power provided in Sections 71-5-137 and 71-5-139. Immediately after such hearing a final decision in the matter shall be made by the commission, and any contributions or deficiencies in contributions found and determined by the commission to be due shall be assessed and paid, together with interest, within fifteen (15) days after notice of such final decision and assessment, and demand for payment thereof by the department shall have been sent to such employer.
(b) The department, in its discretion, determines on the basis of information submitted by the employer that such assessment should be amended and adjusted to reflect the correct amount of taxes.
Sixty (60) days after the due date of the contributions, together with interest and damages, or upon issuance of a warrant, whichever occurs first, the department, in its discretion, may assess an additional sum not exceeding one hundred percent (100%) of the amount of the unpaid contributions due as penalties for failure to pay.
§ 71-5-367
If an employer shall file a report in proper form and in proper amount, but shall fail to pay the amount of contributions shown to be due thereby at the time of such filing, or if an employer shall fail to pay any assessment as provided and made under Section 71-5-365 within fifteen (15) days after such assessment has become final as herein provided, the department may issue a warrant under its official seal, directed to the sheriff of any county of the state, commanding him to levy upon and sell the real and personal property of such employer as has defaulted in the payment of such contributions or assessments, which may be found within his county, for the payment of the amount thereof, together with interest, damages, if any, assessed for failure to make and file a report or a corrected or sufficient report, and an additional sum not exceeding one hundred percent (100%) of the amount of the unpaid contributions due, in the discretion of the department, as damages for failure to pay, if not already assessed under Section 71-5-365 and the costs of executing the warrant and to return such warrant to the department, and to pay to it the money collected by virtue thereof on the date specified therein. The department shall cause to be delivered to the clerk of the circuit court a copy of such warrant issued to the sheriff. Such clerk shall enter in the judgment roll, in the column for judgment debtors, the name of the employer mentioned in the warrant and, in appropriate columns, the amount of contributions, interest and damages for which the warrant is issued, a notation that the lien covers all previous, current and future periods for the life of the lien, and the date when such copy is filed. Thereupon the amount of such warrant so filed and entered shall become a lien upon the title to and interest in all real and personal property, including choses in action against negotiable instruments not past due, of the employer against whom the warrant is issued in the same manner as a judgment duly enrolled in the office of such clerk. Any such liens shall cover all contributions, interest and damages owed to the department from previous, current and future periods until the expiration of such lien or until the amount of the lien is fully satisfied. Such judgment shall not be a lien upon the property of the employer for a period of more than seven (7) years from the date of filing of the notice of the tax lien for failure to pay contributions, damages and interest unless action be brought thereon before the expiration of such time or unless the department refiles such notice of tax lien before the expiration of such time. The judgment shall be a lien upon the property of the employer for a period of seven (7) years from the date of refiling such notice of tax lien unless action be brought thereon before the expiration of such time or unless the department refiles such notice of tax lien before the expiration of such time. There shall be no limit upon the number of times the department may refile notices of tax liens. The sheriff shall proceed upon the warrant in the same manner and with like effect as that provided by law in respect to executions issued against property upon judgments or in attachment proceedings of a court of record, and the remedies by garnishment shall apply; and for his services in executing the warrant the sheriff shall be entitled to the same fees, which he may collect in the same manner.
The department may elect to issue the warrant directly to the circuit clerk of any county of this state for enrollment upon the judgment rolls of the county. In such case, the clerk shall enter in the judgment roll, in the column for judgment debtors, the name of the employer mentioned in the warrant and, in appropriate columns, the amount of contributions, interest and damages for which the warrant is issued, a notation that the lien covers all previous, current and future periods for the life of the lien, and the date when such warrant is filed. The lien shall have the same effect and remedies as that provided by law in respect to executions issued against property upon judgments or in attachment proceedings of a court of record, and the remedies by garnishment shall apply.
All warrants issued by the department for the collection of any unemployment tax or for an overpayment of benefits imposed by statute and collected by the department shall be used to levy on salaries, compensation or other monies due the delinquent employer or claimant. No such warrant shall be issued until after the delinquent employer or claimant has exhausted all appeal rights associated with the debt. The warrants shall be served by mail or by delivery by an agent of the department on the person or entity responsible or liable for the payment of the monies due the delinquent employer or claimant. Once served, the employer or other person owing compensation due the delinquent employer or claimant shall pay the monies over to the department in complete or partial satisfaction of the liability. An answer shall be made within thirty (30) days after service of the warrant in the form and manner determined satisfactory by the department. Failure to pay the money over to the department as required by this section shall result in the served party being personally liable for the full amount of the monies owed and the levy and collection process may be issued against the party in the same manner as other debts owed to the department. Except as otherwise provided by this section, the answer, the amount payable under the warrant and the obligation of the payor to continue payment shall be governed by the garnishment laws of this state but shall be payable to the department.
§ 71-5-369
If the commission has just cause to believe and does believe that the collection of contributions from an employer will be jeopardized by delay, it may assess such contributions immediately, together with interest and other amounts provided by this chapter, and may immediately issue a jeopardy warrant under its official seal, directed to the sheriff of any county of said state. The sheriff shall, immediately upon receipt of such jeopardy warrant, file with the clerk of the circuit court of his county a copy thereof, and thereafter both the clerk and the sheriff shall proceed in accordance with the provisions of Section 71-5-367.
§ 71-5-371
If any sheriff shall fail to return any warrant directed to him as herein provided on the return day thereof, the commission shall be entitled to recover judgment against the sheriff and the sureties on his official bond for the amount of the warrant and all costs, with lawful interest thereon until paid, together with ten per centum (10%) of the full amount thereof as damages, to be recovered by suit against the sheriff and his sureties by the commission. If any sheriff shall falsely make a nulla bona return on any warrant directed to him as herein provided, the commission shall be entitled to recover judgment against the sheriff and the sureties on his official bond for such amount as he could reasonably have made under such warrant and all costs, together with lawful interest thereon until paid, together with ten per centum (10%) thereon as damages, to be recovered by a suit against the sheriff and his sureties by the commission.
§ 71-5-373
An employer liable for contributions under the provisions of this chapter who fails to make and file his returns and reports as required, or who fails to pay any contributions when due under the provisions of this chapter, shall forfeit his right to do business in this state until he complies with all the provisions of this chapter and until he enters into a bond with sureties, to be approved by the commission, in an amount not to exceed all contributions estimated to become due by said employer under the provisions of this chapter for any three-month period, conditioned to comply with the provisions of this chapter, and to pay all contributions legally due or to become due by him. The commission may proceed by injunction to prevent the continuance of said business, and any temporary injunction enjoining the continuance of such business shall be granted without notice by any judge or chancellor now authorized by law to grant injunctions.
§ 71-5-375
The contributions required by this chapter shall be a lien upon the property of any employer subject to its provisions who shall sell out his business or stock of goods, or who shall quit business, or whose property used or acquired in the business shall be sold under voluntary conveyance or under foreclosure, execution, attachment, distraint, or other judicial proceedings. Such employer shall, within ten (10) days before the happening of any of the above contingencies, be required to file such reports as the commission shall prescribe and to pay the contributions required by this chapter with respect to wages payable for employment up to the date of the happening of such contingency. The purchaser or successor in business shall withhold sufficient of the purchase money to cover the amount of contributions due and unpaid, until such time as such employer shall produce a receipt from the commission showing that the contributions have been paid or a certificate that no contributions are due. If such purchaser or successor shall fail to withhold purchase money as above provided, and the contributions shall not be paid within the ten (10) days specified above, such purchaser or successor shall be personally liable for the payment of the contributions accrued and unpaid on account of the operation of the business by the former owner.
§ 71-5-377
In the event of any distribution of an employer's assets pursuant to an order of any court under the laws of this state, including any receivership, assignment for benefit of creditors, adjudicated insolvency, composition, or similar proceedings, contributions then or thereafter due shall be paid in full prior to all other claims except taxes, but on a parity with claims for wages of not more than two hundred and fifty dollars ($250.00) to each claimant, earned within six (6) months of the commencement of the proceedings. In the event of an employer's adjudication in bankruptcy, judicially confirmed extension proposals, or composition under the Federal Bankruptcy Act of 1898, as amended, contributions then or thereafter due shall be entitled to such priority as is provided therein for taxes due and owing this state.
§ 71-5-379
If, after due notice, an employer defaults in any payment of contributions or interest thereon, the amount due may be collected by civil action in the name of the commission, and this remedy shall be in addition to such other remedies as may be herein provided or otherwise provided by law. An employer adjudged in default shall pay the costs of such action. Civil actions brought under this section to collect contributions or interest thereon from an employer shall be heard by the court at the earliest possible date, and shall be entitled to preference upon the calendar of the court over all other civil actions except petitions for judicial review of claims for benefits under this chapter.
§ 71-5-381
No injunction shall be awarded by any court or judge to restrain the collection of contributions required by this chapter or to restrain the enforcement of this chapter. The provisions of section 11-13-11, shall not apply to contributions required by this chapter.
§ 71-5-383
The commission is authorized and empowered to refund, without interest, such contributions, interest, and penalties as it may determine were paid erroneously by an employer, or may make or authorize an adjustment thereof in connection with subsequent contribution payments, provided the employer shall make written application for such refund or adjustment within three (3) years to the last day of the calendar year in which the services of individuals in employment, with respect to which such contributions were erroneously paid, were performed. For like cause and within the same period, adjustment or refund may be made on the commission's own initiative.
§ 71-5-385
Any employer may request permission to file unemployment compensation wage and contribution reports in a special format. If the request is approved by the commission, the employer must file the wage and contribution reports in accordance with regulations established by the commission. Failure to follow established regulations may result in a penalty of up to Five Hundred Dollars ($500.00) each calendar quarter for each employer connected with the report.
§ 71-5-387
(1) Indian tribe(s) as defined in Section 3306(u) of the Federal Unemployment Tax Act (FUTA), which includes any subdivision, subsidiary or business enterprise wholly owned by such Indian tribe(s), subject to this chapter shall pay contributions under the same terms and conditions as all other subject employers, unless such Indian tribe elects to pay into the State Unemployment Fund amounts equal to the amount of benefits attributable to service in the employ of the Indian tribe.
(2)Tribal unit(s) means any subdivision, subsidiary or business enterprise wholly owned by any Indian tribe as defined in Section 3306(u) of the Federal Unemployment Tax Act (FUTA) or any combination of any such subdivisions, subsidiaries or business enterprises wholly owned by such Indian tribe as defined in Section 3306(u) of the Federal Unemployment Tax Act (FUTA).
(3) Indian tribes electing to make payments in lieu of contributions must make such election in the same manner and under the same conditions as provided in Section 71-5-357 pertaining to nonprofit organizations subject to this chapter, except the tribe may determine if reimbursement for benefits paid will be elected by the tribe as a whole, by individual tribal units or by combinations of individual tribal units. Any tribal unit not making such election, shall pay contributions as described in Sections 71-5-351 through 71-5-355.
(4) Payments in lieu of contributions shall be made in accordance with the provisions of Section 71-5-357.
(5) Failure of the Indian tribe or tribal unit to post any bond as required by this chapter or to make payments in lieu of contributions if so elected by the tribe or tribal unit, as provided in subsection (3) of this section, including assessments of interest and penalty, within ninety (90) days of mailing or transmittal of the first delinquency notice to the last known address, shall cause the Indian tribe to lose the option to make payments in lieu of contributions, as described in Section 71-5-357, for the following tax year, unless payment in full is received before January 1 of the next tax year.
(6) Any Indian tribe that loses the option to make payments in lieu of contributions, as provided in subsection (5) of this section, may have such options reinstated if, after a period of one (1) year, all contributions have been made timely and no contributions, payments in lieu of contributions for benefits paid, penalties or interest remain unpaid.
(7) Failure of the Indian tribe or any tribal unit thereof to make required payments, reimbursements or contributions whichever may apply, including assessments of interest and penalty, after all collection activities deemed necessary by the commission have been exhausted, may cause services performed for such tribe to not be treated as “employment” for purposes of Section 71-5-11.
(8) If any Indian tribe fails to post any bond as required by this chapter or make payments required under this chapter, including contributions, reimbursements or assessments of interest and penalty, within ninety (90) days of the mailing or transmittal of a final notice, the commission shall immediately notify the United States Internal Revenue Service and the United States Department of Labor.
(9) The commission may determine that any Indian tribe that loses coverage under subsection (7) of this section, may again have services performed for such tribe included as “employment” for purposes of Section 71-5-11 if all contributions, payments in lieu of contributions, penalties and interest have been paid.
(10) Notices of payment and reporting delinquency to any Indian tribe or tribal unit shall include information that failure to make full payment within the prescribed time frame:
(a) Shall cause the Indian tribe to be liable for taxes under the Federal Unemployment Tax Act (FUTA);
(b) Shall cause the Indian tribe to lose the option to make payments in lieu of contributions;
(c) May cause the Indian tribe to be excepted from the definition of “employer,” as provided in Section 71-5-11, and services in the employ of the Indian tribe, as provided in Section 71-5-11, to be excepted from “employment.”
(11) Benefits based on service performed in employment with an Indian tribe as defined in Section 3306(u) of the Federal Unemployment Tax Act (FUTA), which includes any subdivision, subsidiary or business enterprise wholly owned by such Indian tribe, shall be payable in the same amount, on the same terms and subject to the same conditions, as benefits payable on the basis of other service subject to this chapter.
(12) Extended benefits paid that are attributable to service in the employ of an Indian tribe, and not reimbursed by the federal government, shall be financed in their entirety by such Indian tribe.
(13) Any non-FUTA exclusions, that are by reference included in this section, shall not apply to Indian tribes if federal law requires coverage of such services.
§ 71-5-389
(1) For the purposes of this section, the following terms shall have the respective meanings ascribed by this section:
(a) “Claimant agency” means the Mississippi Department of Employment Security.
(b) “Debtor” means any individual, corporation or partnership owing money or having a delinquent account with any claimant agency, which obligation has not been adjudicated satisfied by court order, set aside by court order, or discharged in bankruptcy.
(c) “Debt” means any sum due and owing any claimant agency, including costs, court costs, fines, penalties and interest which have accrued through contract, subrogation, tort, operation of law, or any other legal theory regardless of whether there is an outstanding judgment for that sum which is legally collectible and for which a collection effort has been or is being made.
(d) “Department” or “Department of Revenue,” or “Revenue” means the Department of Revenue of the State of Mississippi.
(e) “Refund” means the Mississippi income tax refund or federal income tax refund which the department determines to be due any individual taxpayer, corporation or partnership.
(f) “Treasury” means the United States Department of the Treasury.
(2) The collection remedy authorized by this section is in addition to and is not substitution for any other remedy available by law.
(3)(a) A claimant agency may submit debts in excess of Twenty-five Dollars ($25.00) owed to it to the department for collection through setoff, under the procedure established by this section, except in cases where the validity of the debt is legitimately in dispute, an alternate means of collection is pending and believed to be adequate, or such collection would result in a loss of federal funds or federal assistance.
(b) Upon the request of a claimant agency, the department or, if applicable, Treasury shall set off any refund, as defined herein, against the sum certified by the claimant agency as provided in this section.
(4)(a) Within the time frame specified by the department and/or Treasury, a claimant agency seeking to collect a debt through setoff shall supply the information necessary to identify each debtor whose refund is sought to be set off and certify the amount of debt or debts owed by each such debtor.
(b) If a debtor identified by a claimant agency is determined by the department and/or Treasury to be entitled to a refund of at least Twenty-five Dollars ($25.00), the department or, if applicable, Treasury shall transfer an amount equal to the refund owed, not to exceed the amount of the claimed debt certified, to the claimant agency. The Department of Revenue or, if applicable, Treasury shall send the excess amount to the debtor within a reasonable time after such excess is determined. At the time of the transfer of funds to a claimant agency pursuant to this paragraph (b), the Department of Revenue or, if applicable, Treasury shall notify the taxpayer or taxpayers whose refund is sought to be set off that the transfer has been made. Such notice shall clearly set forth the name of the debtor, the manner in which the debt arose, the amount of the claimed debt, the transfer of funds to the claimant agency pursuant to this paragraph (b) and the intention to set off the refund against the debt, the amount of the refund in excess of the claimed debt, the taxpayer's opportunity to give written notice to contest the setoff within thirty (30) days of the date of mailing of the notice, the name and mailing address of the claimant agency to which the application for such a hearing must be sent, and the fact that the failure to apply for such a hearing, in writing, within the thirty-day period will be deemed a waiver of the opportunity to contest the setoff. In the case of a joint return or a joint refund, the notice shall also state the name of the taxpayer named in the return, if any, against whom no debt is claimed, the fact that a debt is not claimed against such taxpayer, the fact that such taxpayer is entitled to receive a refund if it is due him or her regardless of the debt asserted against his or her spouse, and that in order to obtain a refund due him or her such taxpayer must apply in writing for a hearing with the claimant agency named in the notice within thirty (30) days of the date of the mailing of the notice. If a taxpayer fails to apply in writing for such a hearing within thirty (30) days of the mailing of such notice, he or she will have waived his or her opportunity to contest the setoff.
(c) Upon receipt of funds transferred from the Department of Revenue and/or Treasury pursuant to paragraph (b) of this subsection, the claimant agency shall deposit and hold such funds in an escrow account until a final determination of the validity of the debt.
(d) The claimant agency shall pay the Department of Revenue and/or Treasury a fee, not to exceed Seventeen Dollars ($17.00) in each case in which a tax refund is identified as being available for offset. Such fees shall be deposited by the Department of Revenue into a special fund hereby created in the State Treasury, out of which the Legislature shall appropriate monies to defray expenses of the Department of Revenue in employing personnel to administer the provisions of this section.
(5)(a) When the claimant agency receives a protest or an application in writing from a taxpayer within thirty (30) days of the notice issued by the Department of Revenue and/or Treasury, the claimant agency shall set a date to hear the protest and give notice to the taxpayer through the United States Postal Service or electronic digital transfer of the date so set. The time and place of such hearing shall be designated in such notice and the date set shall not be less than fifteen (15) days from the date of such notice. If, at the hearing, the sum asserted as due and owing is found not to be correct, an adjustment to the claim may be made. The claimant agency shall give notice to the debtor of its final determination as provided in paragraph (c) of this subsection.
(b) No issues shall be reconsidered at the hearing which have been previously litigated.
(c) If any debtor is dissatisfied with the final determination made at the hearing by the claimant agency, he or she may appeal the final determination to the circuit court of the county in which the main office of the claimant agency is located by filing notice of appeal with the administrative head of the claimant agency and with the clerk of the circuit court of the county in which the appeal shall be taken within thirty (30) days from the date the notice of final determination was given by the claimant agency.
(6)(a) Upon final determination of the amount of the debt due and owing by means of hearing or by the taxpayer's default through failure to comply with timely request for review, the claimant agency shall remove the amount of the debt due and owing from the escrow account and credit such amount to the debtor's obligation.
(b) Upon transfer of the debt due and owing from the escrow account to the credit of the debtor's account, the claimant agency shall notify the debtor in writing of the finalization of the setoff. Such notice shall include a final accounting if the refund which was set off, including the amount of the refund to which the debtor was entitled before the setoff, the amount of the debt due and owing, the amount of the collection fee paid to the Department of Revenue and/or Treasury, the amount of the refund in excess of the debt which was returned to the debtor by the Department of Revenue and/or Treasury, and the amount of the funds transferred to the claimant agency in excess of the debt determined to be due and owing at a hearing, if such a hearing was held. At such time, the claimant agency shall refund to the debtor the amount of the claimed debt originally certified and transferred to it by the Department of Revenue in excess of the amount of debt finally found to be due and owing.
(7)(a) Notwithstanding the provision that prohibits disclosure by the Department of Revenue and/or Treasury of the contents of taxpayer records or information and notwithstanding any other confidentiality statute, the Department of Revenue and/or Treasury may provide to a claimant agency all information necessary to accomplish and effectuate the intent of the section.
(b) The information obtained by claimant agency from the Department of Revenue and/or Treasury in accordance with the provisions of this section shall retain its confidentiality and shall only be used by a claimant agency in the pursuit of its debt collection duties and practices; and any employee or prior employee of any claimant agency who unlawfully discloses any such information for any other purpose, except as specifically authorized by law, shall be subject to the same penalties specified by law for unauthorized confidential information by an agent or employee of the Department of Revenue and/or Treasury.
§ 71-5-391
The executive director of the department may use available administrative funds for payment of fees associated with receipt of electronic payments made to the department. In the event the fees are charged to an employer through a payment process external to the department, amounts not to exceed the charges for the electronic transaction may be credited to the employer and used as an offset to future indebtedness.
§ 71-5-451
There is established as a special fund, separate and apart from all public monies or funds of this state, an Unemployment Compensation Fund, which shall be administered by the department exclusively for:
(a) All contributions collected under this chapter;
(b) Interest earned upon any monies in the fund;
(c) Any property or securities acquired through the use of monies belonging to the fund;
(d) All earnings of such property or securities;
(e) All monies credited to this state's account in the Unemployment Trust Fund pursuant to the Social Security Act, 42 USCS, Section 1104; and
(f) By way of reimbursement in accordance with Section 204 of the Federal-State Extended Unemployment Compensation Act of 1970 (84 Stat. 711). All monies in the fund shall be mingled and undivided.
§ 71-5-453
The department shall be the treasurer and custodian of the fund, and shall administer such fund in accordance with the directions of the department, and shall issue its warrants upon it in accordance with such regulations as the department shall prescribe. The department shall maintain within the fund three (3) separate accounts: (a) a clearing account, (b) an unemployment trust fund account, and (c) a benefit payment account. All monies payable to the fund, upon receipt thereof by the department, shall be immediately deposited in the clearing account. Refunds payable pursuant to Section 71-5-383 may be paid from the clearing account by the department. Transfers pursuant to Section 71-5-114 of all interest, penalties and damages collected shall be made to the Special Employment Security Administration Fund as soon as practicable after the end of each calendar quarter. Workforce Enhancement Training contributions, Mississippi Office of Workforce Development contributions and Mississippi Works contributions shall be deposited into the Workforce Investment and Training Holding Account as described in this section. All other monies in the clearing account shall be immediately deposited with the Secretary of the Treasury of the United States of America to the Unemployment Trust Fund account for the State of Mississippi, established and maintained pursuant to Section 904 of the Social Security Act, as amended, any provisions of law in this state relating to the deposit, administration, release or disbursement of monies in the possession or custody of this state to the contrary notwithstanding. The benefit account shall consist of all monies requisitioned from this state's account in the Unemployment Trust Fund. Except as herein otherwise provided, monies in the clearing and benefit accounts may be deposited by the department, in any bank or public depository in which general funds of the state may be deposited, but no public deposit insurance charge or premium shall be paid out of the fund. The department shall be liable for the faithful performance of its duties in connection with the Unemployment Compensation Fund under this chapter. A Workforce Investment and Training Holding Account shall be established by and maintained under the control of the Mississippi Department of Employment Security. Contributions collected pursuant to the provisions in this chapter for the Workforce Enhancement Training Fund, Mississippi Office of Workforce Development Fund and the Mississippi Works Fund shall be transferred from the clearing account into the Workforce Investment and Training Holding Account on the same schedule and under the same conditions as funds transferred to the Unemployment Compensation Fund. Such funds shall remain on deposit in the holding account for a period of thirty (30) days. After such period, Workforce Enhancement Training contributions shall be transferred to the appropriate Mississippi Community College Board Treasury Account, with oversight provided by the Mississippi Office of Workforce Development, by the department. The Mississippi Office of Workforce Development contributions shall be transferred to the Mississippi Office of Workforce Development Treasury Account for the Mississippi Office of Workforce Development Fund. The Mississippi Works contributions shall be transferred to the Mississippi Department of Employment Security Treasury Account for the Mississippi Works Fund. Such transfers shall occur within fifteen (15) days after the funds have resided in the Workforce Investment and Training Holding Account for thirty (30) days. One (1) such transfer shall be made monthly, but the department, in its discretion, may make additional transfers in any month. In the event such funds transferred are subsequently determined to be erroneously paid or collected, or if deposit of such funds is denied or rejected by the banking institution for any reason, or deposits are unable to clear drawer's account for any reason, the funds must be reimbursed by the recipient of such funds within thirty (30) days of mailing of notice by the department demanding such refund, unless funds are available in the Workforce Investment and Training Holding Account. In that event such amounts shall be immediately withdrawn from the Workforce Investment and Training Holding Account by the department and redeposited into the clearing account.
§ 71-5-455
Monies shall be requisitioned from this state's account in the Unemployment Trust Fund solely for the payment of benefits and in accordance with regulations prescribed by the department, except that monies credited to this state's account pursuant to Section 903 of the Social Security Act, as amended, shall be used exclusively as provided in Section 71-5-457. No monies in the Unemployment Compensation Fund shall be used to pay interest on any funds that might be borrowed for the purposes of this chapter, but any such interest that might be due shall be paid from other sources. The department shall from time to time requisition from the Unemployment Trust Fund such amounts, not exceeding the amount standing to this state's account therein, as it deems necessary for the payment of benefits for a reasonable future period. Such sums shall be immediately deposited by the department in some bank within this state in an account to be known as the “benefit payment account,” which shall be under the control of the department and on which said benefit payment account the department or its duly authorized representative is authorized to draw and issue its checks in payment of benefits to individuals entitled thereto under this chapter. Expenditures of such monies in the benefit account and benefit payment account and refunds from the clearing account shall not be subject to any provisions of law requiring specific appropriations or other formal release by state officers of money in their custody. All warrants shall bear the signature of the department's duly authorized agent for that purpose.
The department shall be subject to the applicable laws pertaining to security of public fund deposits as set forth in Sections 27-105-5 and 27-105-6.
§ 71-5-457
(1) Except as otherwise provided in subsection (5), money credited to the account of this state in the Unemployment Trust Fund by the Secretary of the Treasury of the United States of America pursuant to the Social Security Act, 42 USCS Section 1103, may be requisitioned and used for the payment of expenses incurred for the administration of this law pursuant to a specific appropriation by the Legislature, provided that the expenses are incurred and the money is requisitioned after the enactment of an appropriation law which:
(a) Specifies the purposes for which such money is appropriated and the amounts appropriated therefor;
(b) Limits the period within which such money may be obligated to a period ending not more than two (2) years after the date of the enactment of the appropriation law; and
(c) Limits the amount which may be obligated during a twelve-month period beginning on July 1 and ending on the next June 30 to an amount which does not exceed the amount by which:
(i) The aggregate of the amounts credited to the account of this state pursuant to the Social Security Act, 42 USCS Section 1103, during the same twelve-month period and the thirty-four (34) preceding twelve-month periods exceeds.
(ii) The aggregate of the amounts obligated pursuant to this section and charged against the amounts credited to the account of this state during such thirty-five (35) twelve-month periods.
For the purposes of this section, amounts obligated during any such twelve-month period shall be charged against equivalent amounts which were first credited and which are not already so charged; except that no amount obligated for administration during any such twelve-month period may be charged against any amount credited during such a twelve-month period earlier than the thirty-fourth preceding such period.
(2) Money credited to the account of this state pursuant to the Social Security Act, 42 USCS Section 1103, may not be withdrawn or used except for the payment of benefits and for the payment of expenses for the administration of this law and of public employment offices pursuant to this section.
(3) Money appropriated as provided herein for the payment of expenses of administration shall be requisitioned as needed for the payment of obligations incurred under such appropriation and, upon requisition, shall be deposited in the Employment Security Administration Fund, from which such payments shall be made. Money so deposited shall, until expended, remain a part of the Unemployment Compensation Fund and, if it will not be expended, shall be returned promptly to the account of this state in the Unemployment Trust Fund.
(4) The thirty-five-year limitation provided in this section is no longer in force, effective October 1, 1991.
(5) Notwithstanding subsection (1), monies credited with respect to federal fiscal years 1999, 2000 and 2001 shall be used by the department solely for the administration of the unemployment compensation program.
§ 71-5-459
The provisions of Sections 71-5-451 to 71-5-459, to the extent that they relate to the unemployment trust fund, shall be operative only so long as such unemployment trust fund continues to exist and so long as the Secretary of the Treasury of the United States of America continues to maintain for this state a separate book account of all funds deposited therein by this state for benefit purposes and of money credited pursuant to Section 903 of the Social Security Act, as amended, together with this state's proportionate share of the earnings of such unemployment trust fund, from which no other state is permitted to make withdrawals. If and when such unemployment trust fund ceases to exist or such separate book account is no longer maintained, all moneys, properties, or securities therein belonging to the unemployment compensation fund of this state shall be transferred to the treasurer of the unemployment compensation fund, who shall hold, invest, transfer, sell, deposit, and release such moneys, properties, or securities in a manner approved by the commission, in accordance with the provisions of this chapter, provided that such moneys shall be invested in the following readily marketable classes of securities: bonds or other interest bearing obligations of the United States of America, the State of Mississippi, and of any county; consolidated school district, supervisors district road bonds, and municipal bonds of counties, cities, and towns of Mississippi; federal land bank bonds and home owners loan corporation bonds; Yazoo and Mississippi Delta Levee District bonds; Mississippi Levee District bonds; municipal bonds of cities with a population of one hundred thousand (100,000) and over located in the states of Louisiana, Texas, Arkansas, Alabama, Georgia, Florida, and Tennessee; and provided further that such investment shall at all times be so made that all the assets of the fund shall always be readily convertible into cash when needed for the payment of benefits. The treasurer shall dispose of securities or other properties belonging to the unemployment compensation fund only under direction of the commission.
§ 71-5-501
Wages earned for services defined in Section 71-5-11(I)(15)(g), irrespective of when performed, shall not be included for purposes of determining eligibility under Section 71-5-511(e) or weekly benefit amount under Section 71-5-503 nor shall any benefits with respect to unemployment be payable under Section 71-5-505 on the basis of such wages. All benefits shall be paid through employment offices or such other agency or agencies as the department may, by regulation, designate, in accordance with such regulations as the department may prescribe. The department may, by regulation, prescribe that benefits due and payable to claimants who die prior to the receipt or cashing of benefits checks may be paid to the legal representative, dependents, or next of kin, of the deceased as may be found by it to be equitably entitled thereto, and every such payment shall be deemed a valid payment to the same extent as if made to the legal representative of the decedent.
§ 71-5-503
An individual's weekly benefit amount for a benefit year shall be one-twenty-sixth ( 1/26 ) of his total wages for insured work paid during that quarter of his base period in which such total wages were highest, computed to the next lower multiple of One Dollar ($1.00), if not a multiple of One Dollar ($1.00).
On or before June 15 of each year, the total wages reported on contribution reports for the preceding calendar year shall be divided by the average monthly number of insured workers (determined by dividing the total insured workers reported on contribution reports pursuant to the regulations of the department for the preceding year by twelve (12)). The average annual wage thus obtained shall be divided by fifty-two (52) and the average weekly wage thus determined rounded to the nearest cent. Sixty percent (60%) of this amount, rounded to the nearest dollar, shall constitute the maximum “weekly benefit amount” paid to any individual whose benefit year commences on or after July 1 of such year and prior to July 1 of the next following year; provided however, that the maximum weekly benefit amount shall not exceed Two Hundred Ten Dollars ($210.00) for any benefit year that begins on or after July 1, 2002, and shall not exceed Two Hundred Thirty Dollars ($230.00) for any benefit year that begins on or after July 1, 2008, and shall not exceed Two Hundred Thirty-five Dollars ($235.00) for any benefit year that begins on or after July 1, 2009. The minimum weekly benefit amount for the individual shall be Thirty Dollars ($30.00). If an individual's weekly benefit amount would compute to less than the said minimum, then such individual would be entitled to no benefits.
An individual's weekly benefit amount, as determined at the beginning of his benefit year, shall constitute his weekly benefit amount throughout such benefit year.
The Mississippi Department of Employment Security, with the assistance of the United States Department of Labor, is directed to generate actuarially sound models for computation of weekly benefit amounts. Such models shall include scenarios for increasing the weekly benefit amounts at each increment from the minimum to the maximum amount and the impact such increments would have on the Unemployment Compensation Fund. Such report shall be provided to the Mississippi Legislature on or before December 31, 2008.
§ 71-5-505
(1) For weeks beginning on or after July 1, 1991, each eligible individual who is totally unemployed or part totally unemployed in any week shall be paid with respect to such week a benefit in an amount equal to his weekly benefit amount less that part of his wages, if any, payable to him with respect to such week which is in excess of Forty Dollars ($40.00). Such individuals must have been totally unemployed or part totally unemployed for a waiting period of one (1) week during which he earned less than his weekly benefit amount plus Forty Dollars ($40.00). Such benefit for a benefit year effective on or after October 1, 1983, if not a multiple of One Dollar ($1.00), shall be computed to the next lower multiple of One Dollar ($1.00). Provided, however, that remuneration for “inactive duty training” or “unit training assembly” payable to such eligible individual who is a member of any of the reserve components, or remuneration for jury duty pursuant to a lawfully issued summons therefor payable to such eligible individual, shall not be considered wages which serve to reduce the otherwise payable benefit amount.
In determining whether an eligible individual is unemployed during a week, the date of commencing a shift shall determine the week for which the earnings are deducted.
(2) However, the one-week waiting period described herein shall be waived if the President of the United States declares a major disaster with regard to individual assistance in accordance with Section 401 of The Robert T. Stafford Disaster Relief and Emergency Assistance Act. The department, in its discretion, shall have the authority to noncharge an employer account for any benefits paid for unemployment due directly to such disaster, but only in those counties and/or areas identified by the disaster area for individual assistance.
§ 71-5-506
(1) An individual filing a new claim for unemployment compensation shall, at the time of filing such claim, be advised that:
(a) Unemployment compensation is subject to federal, state and local income tax;
(b) Requirements exist pertaining to estimated tax payments;
(c) The individual may elect to have federal and state income tax deducted and withheld from the individual's payment of unemployment compensation at the amount specified in the Federal Internal Revenue Code and Chapter 7, Title 27, Mississippi Code of 1972;
(d) The individual shall be permitted to change a previously elected withholding status.
(2) Amounts deducted and withheld from unemployment compensation shall remain in the unemployment fund until transferred to the federal or state taxing authority as a payment of income tax.
(3) The commission shall follow all procedures specified by the United States Department of Labor, the Federal Internal Revenue Service and the Mississippi Department of Revenue pertaining to the deducting and withholding of income tax.
(4) Amounts shall be deducted and withheld in accordance with the priorities established in regulations developed by the commission.
§ 71-5-507
Any otherwise eligible individual shall be entitled during any benefit year to a total amount of regular benefits equal to twenty-six (26) times his weekly benefit amount or one-third ( 1/3 ) of his total wages for insured work paid during his base period, whichever is the lesser. Provided, that for a benefit year effective prior to October 1, 1983, if such total amount of benefits is not a multiple of one dollar ($1.00), it shall be computed to the next higher multiple of one dollar ($1.00); and for a benefit year effective on or after October 1, 1983, if such total amount of benefits is not a multiple of one dollar ($1.00), it shall be computed to the next lower multiple of one dollar ($1.00). An individual's total amount of regular benefits as determined at the beginning of his benefit year shall constitute his total amount of regular benefits throughout such benefit year.
§ 71-5-509
(1) For the purposes of this section, cotton ginning and professional baseball only are classified as seasonal industries.
(2) The term “seasonal worker” means an individual who is employed in a seasonal industry, and who has base period wages paid on and after July 1, 1983, in such seasonal industry, except that the term shall not include workers in such industry where employment continues substantially throughout the year. Any individual who has earnings in a seasonal industry having a seasonal operating period within the limits shown in the first column at the end of this subsection, and who has base period wages earned in such seasonal industry in the nonoperating season of such seasonal industry in an amount equal to the amount specified on the corresponding line of the second column at the end of this subsection, shall be considered as having employment which continues substantially throughout the year and shall not be considered a seasonal worker.
| Operating Period of | Wages Earned in Seasonal Industry | | --- | --- | | Seasonal Industry | During Nonoperating Period | | 27-36 Weeks | 24 Times Weekly Benefit Amount | | 6-26 Weeks | 30 Times Weekly Benefit Amount |
(3) The commission shall prescribe fair and reasonable general rules consistent with this chapter which are applicable to seasonal workers for determining the period or periods during which benefits shall be payable to them. The commission may prescribe fair and reasonable general rules with respect to such other matters relating to benefits for seasonal workers as the commission finds necessary and consistent with the policy and purposes of this chapter.
§ 71-5-511
An unemployed individual shall be eligible to receive benefits with respect to any week only if the department finds that:
(a)(i) He has registered for work at and thereafter has continued to report to the department in accordance with such regulations as the department may prescribe; except that the department may, by regulation, waive or alter either or both of the requirements of this subparagraph as to such types of cases or situations with respect to which it finds that compliance with such requirements would be oppressive or would be inconsistent with the purposes of this chapter; and
(ii) He participates in reemployment services, such as job search assistance services, if, in accordance with a profiling system established by the department, it has been determined that he is likely to exhaust regular benefits and needs reemployment services, unless the department determines that:
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The individual has completed such services; or
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There is justifiable cause for the claimant's failure to participate in such services.
(b) He has made a claim for benefits in accordance with the provisions of Section 71-5-515 and in accordance with such regulations as the department may prescribe thereunder.
(c) He is able to work, available for work and actively seeking work.
(d) He has been unemployed for a waiting period of one (1) week. No week shall be counted as a week of unemployment for the purposes of this paragraph:
(i) Unless it occurs within the benefit year which includes the week with respect to which he claims payment of benefits;
(ii) If benefits have been paid with respect thereto;
(iii) Unless the individual was eligible for benefits with respect thereto, as provided in Sections 71-5-511 and 71-5-513, except for the requirements of this paragraph.
(e) For weeks beginning on or before July 1, 1982, he has, during his base period, been paid wages for insured work equal to not less than thirty-six (36) times his weekly benefit amount; he has been paid wages for insured work during at least two (2) quarters of his base period; and he has, during that quarter of his base period in which his total wages were highest, been paid wages for insured work equal to not less than sixteen (16) times the minimum weekly benefit amount. For benefit years beginning after July 1, 1982, he has, during his base period, been paid wages for insured work equal to not less than forty (40) times his weekly benefit amount; he has been paid wages for insured work during at least two (2) quarters of his base period, and he has, during that quarter of his base period in which his total wages were highest, been paid wages for insured work equal to not less than twenty-six (26) times the minimum weekly benefit amount. For purposes of this paragraph, wages shall be counted as “wages for insured work” for benefit purposes with respect to any benefit year only if such benefit year begins subsequent to the date on which the employing unit by which such wages were paid has satisfied the conditions of Section 71-5-11, subsection H, or Section 71-5-361, subsection (3), with respect to becoming an employer.
(f) No individual may receive benefits in a benefit year unless, subsequent to the beginning of the next preceding benefit year during which he received benefits, he performed service in “employment” as defined in Section 71-5-11, subsection I, and earned remuneration for such service in an amount equal to not less than eight (8) times his weekly benefit amount applicable to his next preceding benefit year.
(g) Benefits based on service in employment defined in Section 71-5-11, subsection I(3) and I(4), and Section 71-5-361, subsection (4) shall be payable in the same amount, on the same terms, and subject to the same conditions as compensation payable on the basis of other service subject to this chapter, except that benefits based on service in an instructional, research or principal administrative capacity in an institution of higher learning (as defined in Section 71-5-11, subsection N) with respect to service performed prior to January 1, 1978, shall not be paid to an individual for any week of unemployment which begins during the period between two (2) successive academic years, or during a similar period between two (2) regular terms, whether or not successive, or during a period of paid sabbatical leave provided for in the individual's contract, if the individual has a contract or contracts to perform services in any such capacity for any institution or institutions of higher learning for both such academic years or both such terms.
(h) Benefits based on service in employment defined in Section 71-5-11, subsection I(3) and I(4), shall be payable in the same amount, on the same terms and subject to the same conditions as compensation payable on the basis of other service subject to this chapter, except that:
(i) With respect to service performed in an instructional, research or principal administrative capacity for an educational institution, benefits shall not be paid based on such services for any week of unemployment commencing during the period between two (2) successive academic years, or during a similar period between two (2) regular but not successive terms, or during a period of paid sabbatical leave provided for in the individual's contract, to any individual, if such individual performs such services in the first of such academic years or terms and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms, and provided that paragraph (g) of this section shall apply with respect to such services prior to January 1, 1978. In no event shall benefits be paid unless the individual employee was terminated by the employer.
(ii) With respect to services performed in any other capacity for an educational institution, benefits shall not be paid on the basis of such services to any individual for any week which commences during a period between two (2) successive academic years or terms, if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms, except that if compensation is denied to any individual under this subparagraph and such individual was not offered an opportunity to perform such services for the educational institution for the second of such academic years or terms, such individual shall be entitled to a retroactive payment of compensation for each week for which the individual filed a timely claim for compensation and for which compensation was denied solely by reason of this clause. In no event shall benefits be paid unless the individual employee was terminated by the employer.
(iii) With respect to services described in subparagraphs (i) and (ii) of this paragraph (h), benefits shall not be payable on the basis of services in any such capacities to any individual for any week which commences during an established and customary vacation period or holiday recess if such individual performs such services in the first of such academic years or terms, or in the period immediately before such vacation period or holiday recess, and there is a reasonable assurance that such individual will perform such services in the period immediately following such vacation period or holiday recess.
(iv) With respect to any services described in subparagraphs (i) and (ii) of this paragraph (h), benefits shall not be payable on the basis of services in any such capacities as specified in subparagraphs (i), (ii) and (iii) of this paragraph (h) to any individual who performed such services in an educational institution while in the employ of an educational service agency. For purposes of this paragraph, the term “educational service agency” means a governmental agency or governmental entity which is established and operated exclusively for the purpose of providing such services to one or more educational institutions.
(v) With respect to services to which Sections 71-5-357 and 71-5-359 apply, if such services are provided to or on behalf of an educational institution, benefits shall not be payable under the same circumstances and subject to the same terms and conditions as described in subparagraphs (i), (ii), (iii) and (iv) of this paragraph (h).
(i) Subsequent to December 31, 1977, benefits shall not be paid to any individual on the basis of any services substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, for any week which commences during the period between two (2) successive sports seasons (or similar periods) if such individual performs such services in the first of such seasons (or similar periods) and there is a reasonable assurance that such individual will perform such services in the later of such seasons (or similar periods).
(j)(i) Subsequent to December 31, 1977, benefits shall not be payable on the basis of services performed by an alien, unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services, or was permanently residing in the United States under color of law at the time such services were performed (including an alien who was lawfully present in the United States as a result of the application of the provisions of Section 203(a)(7) or Section 212(d)(5) of the Immigration and Nationality Act).
(ii) Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits.
(iii) In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of his alien status shall be made, except upon a preponderance of the evidence.
(k) An individual shall be deemed prima facie unavailable for work, and therefore ineligible to receive benefits, during any period which, with respect to his employment status, is found by the department to be a holiday or vacation period.
(l) A temporary employee of a temporary help firm is considered to have left the employee's last work voluntarily without good cause connected with the work if the temporary employee does not contact the temporary help firm for reassignment on completion of an assignment. A temporary employee is not considered to have left work voluntarily without good cause connected with the work under this paragraph unless the temporary employee has been advised in writing:
(i) That the temporary employee is obligated to contact the temporary help firm on completion of assignments; and
(ii) That unemployment benefits may be denied if the temporary employee fails to do so.
§ 71-5-513
A. An individual shall be disqualified for benefits:
(1)(a) For the week, or fraction thereof, which immediately follows the day on which he left work voluntarily without good cause, if so found by the department, and for each week thereafter until he has earned remuneration for personal services performed for an employer, as in this chapter defined, equal to not less than eight (8) times his weekly benefit amount, as determined in each case; however, marital, filial and domestic circumstances and obligations shall not be deemed good cause within the meaning of this subsection. Pregnancy shall not be deemed to be a marital, filial or domestic circumstance for the purpose of this subsection.
(b) For the week, or fraction thereof, which immediately follows the day on which he was discharged for misconduct connected with his work, if so found by the department, and for each week thereafter until he has earned remuneration for personal services performed for an employer, as in this chapter defined, equal to not less than eight (8) times his weekly benefit amount, as determined in each case.
(c) The burden of proof of good cause for leaving work shall be on the claimant, and the burden of proof of misconduct shall be on the employer.
(2) For the week, or fraction thereof, with respect to which he willfully makes a false statement, a false representation of fact, or willfully fails to disclose a material fact for the purpose of obtaining or increasing benefits under the provisions of this law, if so found by the department, and such individual's maximum benefit allowance shall be reduced by the amount of benefits so paid to him during any such week of disqualification; and additional disqualification shall be imposed for a period not exceeding fifty-two (52) weeks, the length of such period of disqualification and the time when such period begins to be determined by the department, in its discretion, according to the circumstances in each case.
(3) If the department finds that he has failed, without good cause, either to apply for available suitable work when so directed by the employment office or the department, to accept suitable work when offered him, or to return to his customary self-employment (if any) when so directed by the department, such disqualification shall continue for the week in which such failure occurred and for not more than the twelve (12) weeks which immediately follow such week, as determined by the department according to the circumstances in each case.
(a) In determining whether or not any work is suitable for an individual, the department shall consider among other factors the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence; however, offered employment paying the minimum wage or higher, if such minimum or higher wage is that prevailing for his customary occupation or similar work in the locality, shall be deemed to be suitable employment after benefits have been paid to the individual for a period of eight (8) weeks.
(b) Notwithstanding any other provisions of this chapter, no work shall be deemed suitable and benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
(i) If the position offered is vacant due directly to a strike, lockout or other labor dispute;
(ii) If the wages, hours or other conditions of the work offered are substantially unfavorable or unreasonable to the individual's work. The department shall have the sole discretion to determine whether or not there has been an unfavorable or unreasonable condition placed on the individual's work. Moreover, the department may consider, but shall not be limited to a consideration of, whether or not the unfavorable condition was applied by the employer to all workers in the same or similar class or merely to this individual;
(iii) If as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization;
(iv) If unsatisfactory or hazardous working conditions exist that could result in a danger to the physical or mental well-being of the worker. In any such determination the department shall consider, but shall not be limited to a consideration of, the following: the safety measures used or the lack thereof and the condition of equipment or lack of proper equipment. No work shall be considered hazardous if the working conditions surrounding a worker's employment are the same or substantially the same as the working conditions generally prevailing among workers performing the same or similar work for other employers engaged in the same or similar type of activity.
(c) Pursuant to Section 303(1) of the Social Security Act (42 USCS 503), the department may conduct drug tests of applicants for unemployment compensation for the unlawful use of controlled substances as a condition for receiving such compensation, if such applicant:
(i) Was terminated from employment with the claimant's most recent employer, as defined by Mississippi law, because of the unlawful use of controlled substances; or
(ii) Is an individual for whom suitable work, as defined by Mississippi law, is only available in an occupation (as determined under regulations issued by the U.S. Secretary of Labor) that requires drug testing.
The department may deny unemployment compensation to any applicant based on the result of a drug test conducted by the department in accordance with this subsection. A positive drug test result shall be deemed by the department to be a failure to accept suitable work, and shall subject the applicant to the disqualification provisions set forth in this subsection A(3). During the disqualification period imposed by the department under this subsection, the individual may provide information to end the disqualification period early by submitting acceptable proof to the department of a negative test result from a testing facility approved by the department.
(iii) Pursuant to the provisions set forth in this subsection A(3)(c), the department shall have the authority to institute a random drug testing program for all individuals who meet the requirements set forth in this section. Moreover, the department shall have the authority to create the necessary regulations, policies rules, guidelines and procedures to implement such a program.
Any term or provision set forth in this subsection A(3)(c) that otherwise conflicts with federal or state law shall be disregarded but shall not, in any way, affect the remaining provisions.
(4) For any week with respect to which the department finds that his total unemployment is due to a stoppage of work which exists because of a labor dispute at a factory, establishment or other premises at which he is or was last employed; however, this subsection shall not apply if it is shown to the satisfaction of the department:
(a) He is unemployed due to a stoppage of work occasioned by an unjustified lockout, if such lockout was not occasioned or brought about by such individual acting alone or with other workers in concert; or
(b) He is not participating in or directly interested in the labor dispute which caused the stoppage of work; and
(c) He does not belong to a grade or class of workers of which, immediately before the commencement of stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or directly interested in the dispute.
If in any case separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purposes of this subsection, be deemed to be a separate factory, establishment or other premises.
(5) For any week with respect to which he has received or is seeking unemployment compensation under an unemployment compensation law of another state or of the United States. However, if the appropriate agency of such other state or of the United States finally determines that he is not entitled to such unemployment compensation benefits, this disqualification shall not apply. Nothing in this subsection contained shall be construed to include within its terms any law of the United States providing unemployment compensation or allowances for honorably discharged members of the Armed Forces.
(6) For any week with respect to which he is receiving or has received remuneration in the form of payments under any governmental or private retirement or pension plan, system or policy which a base-period employer is maintaining or contributing to or has maintained or contributed to on behalf of the individual; however, if the amount payable with respect to any week is less than the benefits which would otherwise be due under Section 71-5-501, he shall be entitled to receive for such week, if otherwise eligible, benefits reduced by the amount of such remuneration. However, on or after the first Sunday immediately following July 1, 2001, no social security payments, to which the employee has made contributions, shall be deducted from unemployment benefits paid for any period of unemployment beginning on or after the first Sunday following July 1, 2001. This one hundred percent (100%) exclusion shall not apply to any other governmental or private retirement or pension plan, system or policy. If benefits payable under this section, after being reduced by the amount of such remuneration, are not a multiple of One Dollar ($1.00), they shall be adjusted to the next lower multiple of One Dollar ($1.00).
(7) For any week with respect to which he is receiving or has received remuneration in the form of a back pay award, or other compensation allocable to any week, whether by settlement or otherwise. Any benefits previously paid for weeks of unemployment with respect to which back pay awards, or other such compensation, are made shall constitute an overpayment and such amounts shall be deducted from the award by the employer prior to payment to the employee, and shall be transmitted promptly to the department by the employer for application against the overpayment and credit to the claimant's maximum benefit amount and prompt deposit into the fund; however, the removal of any charges made against the employer as a result of such previously paid benefits shall be applied to the calendar year and the calendar quarter in which the overpayment is transmitted to the department, and no attempt shall be made to relate such a credit to the period to which the award applies. Any amount of overpayment so deducted by the employer and not transmitted to the department shall be subject to the same procedures for collection as is provided for contributions by Sections 71-5-363 through 71-5-381. Any amount of overpayment not deducted by the employer shall be established as an overpayment against the claimant and collected as provided above. It is the purpose of this paragraph to assure equity in the situations to which it applies, and it shall be construed accordingly.
B. Notwithstanding any other provision in this chapter, no otherwise eligible individual shall be denied benefits for any week because he is in training with the approval of the department; nor shall such individual be denied benefits with respect to any week in which he is in training with the approval of the department by reason of the application of provisions in Section 71-5-511, subsection (c), relating to availability for work, or the provisions of subsection A(3) of this section, relating to failure to apply for, or a refusal to accept, suitable work.
C. Notwithstanding any other provisions of this chapter, no otherwise eligible individual shall be denied benefits for any week because he or she is in training approved under Section 236(a)(1) of the Trade Act of 1974, nor shall such individual be denied benefits by reason of leaving work to enter such training, provided the work left is not suitable employment, or because of the application to any such week in training of provisions in this law (or any applicable federal unemployment compensation law), relating to availability for work, active search for work or refusal to accept work.
For purposes of this section, the term “suitable employment” means with respect to an individual, work of a substantially equal or higher skill level than the individual's past adversely affected employment (as defined for purposes of the Trade Act of 1974), and wages for such work at not less than eighty percent (80%) of the individual's average weekly wage as determined for the purposes of the Trade Act of 1974.
D. Notwithstanding any other provisions of this chapter, no otherwise eligible individual shall be denied benefits for any week in which they are engaged in the Self-Employment Assistance Program established in Section 71-5-545 by reason of the application of Section 71-5-511(c), relating to availability for work, or the provisions of subsection A(3) of this section, relating to failure to apply for, or a refusal to accept, suitable work.
E. Any individual who is receiving benefits may participate in an approved training program under the Mississippi Employment Security Law to gain skills that may lead to employment while continuing to receive benefits. Authorization for participation of a recipient of unemployment benefits in such a program must be granted by the department and continuation of participation must be certified weekly by the participant recipient. While participating in such program approved by the department, availability and work search requirements will be waived. No individual will be allowed to participate in this program for more than twelve (12) weeks in any benefit year. Such participation shall not be considered employment for any purposes and shall not accrue benefits or wage credits. Participation in this training program shall meet the definition set forth in the U.S. Fair Labor Standards Act.
§ 71-5-515
Claims for benefits shall be made in accordance with such regulations as the commission may prescribe. Each employer shall post and maintain in places readily accessible to individuals in his service printed statements concerning such regulations or such other matters as the commission may by regulation prescribe. Each employer shall supply such individuals copies of such printed statements or materials relating to claims for benefits as the commission may by regulation prescribe. Such printed statements or materials shall be supplied by the commission to each employer without cost to him.
§ 71-5-516
(1) An individual filing a new claim for benefits shall, at the time of filing such claim, disclose whether or not the individual owes child support obligations as defined under subsection (7). If any such individual discloses that he owes child support obligations, and is determined to be eligible for benefits, the commission shall notify the child support enforcement agency that the individual has been determined to be eligible for benefits.
(2) The commission shall deduct and withhold from any benefits payable to an individual that owes child support obligations as defined under subsection (7):
(a) The amount specified by the individual to the commission to be deducted and withheld under this subsection, if neither (b) nor (c) is applicable; or
(b) The amount (if any) determined pursuant to an agreement submitted to the commission under Section 454(19)(A)and(B)(i) of the Social Security Act by the child support enforcement agency, unless (c) is applicable; or
(c) Any amount otherwise required to be so deducted and withheld from such benefits pursuant to legal process (as that term is defined in Section 462(e) of the Social Security Act) properly served upon the commission. Transmittal of the information in subsection (b) or (c) by automated means shall constitute proper service of legal process upon the commission.
(3) Any amount deducted and withheld under subsection (2) shall be paid by the commission to the child support enforcement agency.
(4) Any amount deducted and withheld under subsection (2) shall for all purposes be treated as if it were paid to the individual as benefits and paid by such individual to the child support enforcement agency in satisfaction of the individual's child support obligations.
(5) For purposes of subsections (1) through (4), the term “benefits” means any compensation payable under this chapter (including amounts payable by the commission pursuant to an agreement under any federal law providing for compensation, assistance or allowances with respect to unemployment).
(6) This section applies only if appropriate arrangements have been made for reimbursement by the child support enforcement agency for the administrative costs incurred by the commission under this section which are attributable to child support obligations being enforced by the child support enforcement agency. No administrative costs of either the commission or the child support enforcement agency shall be deducted or withheld by the commission from any benefits payable, however. The amount to be deducted and withheld shall be in an even dollar amount, and the agency shall distribute the support collection in the manner prescribed by Title IV-D of the Social Security Act.
(7) The term “child support obligations” is defined for purposes of this section as including only obligations which are being enforced pursuant to a plan described in Section 454 of the Social Security Act which has been approved by the Secretary of Health and Human Services under Part D of Title IV of the Social Security Act.
§ 71-5-517
Upon the taking of a claim by the department, an initial determination thereon shall be made promptly and shall include a determination with respect to whether or not benefits are payable, the week with respect to which benefits shall commence, the weekly benefit amount payable and the maximum duration of benefits. In any case in which the payment or denial of benefits will be determined by the provisions of subsection A(4) of Section 71-5-513, the examiner shall promptly transmit all the evidence with respect to that subsection to the department, which, on the basis of evidence so submitted and such additional evidence as it may require, shall make an initial determination with respect thereto. An initial determination may for good cause be reconsidered. The claimant, his most recent employing unit and all employers whose experience-rating record would be charged with benefits pursuant to such determination shall be promptly notified of such initial determination or any amended initial determination and the reason therefor. Benefits shall be denied or, if the claimant is otherwise eligible, promptly paid in accordance with the initial determination or amended initial determination. The jurisdiction of the department over benefit claims which have not been appealed shall be continuous. The claimant or any party to the initial determination or amended initial determination may file an appeal from such initial determination or amended initial determination within fourteen (14) days after notification thereof, or after the date such notification was sent to his last known address.
Notwithstanding any other provision of this section, benefits shall be paid promptly in accordance with a determination or redetermination, or the decision of an appeal tribunal, the Board of Review or a reviewing court upon the issuance of such determination, redetermination or decision in favor of the claimant (regardless of the pendency of the period to apply for reconsideration, file an appeal, or petition for judicial review, as the case may be, or the pendency of any such application, filing or petition), unless and until such determination, redetermination or decision has been modified or reversed by a subsequent redetermination or decision, in which event benefits shall be paid or denied in accordance with such modifying or reversing redetermination or decision. Any benefits finally determined to have been erroneously paid may be set up as an overpayment to the claimant and must be liquidated before any future benefits can be paid to the claimant. If, subsequent to such initial determination or amended initial determination, benefits with respect to any week for which a claim has been filed are denied for reasons other than matters included in the initial determination or amended initial determination, the claimant shall be promptly notified of the denial and the reason therefor and may appeal therefrom in accordance with the procedure herein described for appeals from initial determination or amended initial determination.
§ 71-5-519
Unless such appeal is withdrawn, an appeal tribunal appointed by the executive director, after affording the parties reasonable opportunity for fair hearing, shall affirm, modify or reverse the findings of fact and initial determination or amended initial determination. The parties shall be duly notified of such tribunal's decision, together with its reasons therefor, which shall be deemed to be the final decision of the executive director unless, within fourteen (14) days after the date of notification of such decision, further appeal is initiated pursuant to Section 71-5-523.
§ 71-5-521
To hear and decide appealed claims, the board of review shall appoint one or more impartial appeal tribunals consisting in each case of either a referee, who shall be selected in accordance with Section 71-5-121, or a body consisting of three (3) members, one (1) of whom shall be a referee, who shall serve as chairman, one (1) of whom shall be a representative of employers, and the other of whom shall serve as a representative of employees. Each of the latter two (2) members shall serve at the pleasure of the board of review and be paid a fee of not more than twenty dollars ($20.00) per day for active service on such tribunals, plus necessary expenses. Referees shall be paid such salary or per diem as may be determined by the commission, and such expenses as may be allowed by the commission. No person shall participate on behalf of the commission or the board of review in any case in which he is an interested party. The board of review may designate alternates to serve in the absence or disqualification of any member of an appeal tribunal. The chairman shall act alone in the absence or disqualification of any other member and his alternates. In no case shall the hearings proceed unless the chairman of the appeal tribunal is present.
§ 71-5-523
The Board of Review may on its own motion affirm, modify, or set aside any decision of an appeal tribunal on the basis of the evidence previously submitted in such case, or direct the taking of additional evidence, or may permit any of the parties to such decision to initiate further appeals before it. The Board of Review shall permit such further appeal by any of the parties to a decision of an appeal tribunal which is not unanimous, and by the examiner whose decision has been overruled or modified by an appeal tribunal. The Board of Review may remove to itself or transfer to another appeal tribunal the proceedings on any claim pending before an appeal tribunal. Any proceedings so removed to the Board of Review shall be heard by a quorum thereof in accordance with the requirements of Section 71-5-519 and within fifteen (15) days after notice of appeal has been received by the executive director. No notice of appeal shall be deemed to be received by the executive director, within the meaning of this section, until all prior appeals pending before the Board of Review have been heard. The Board of Review shall, within four (4) days after its decision, so notify the parties to any proceeding of its findings and decision.
§ 71-5-525
The manner in which appealed claims shall be presented and the conduct of hearings and appeals shall be in accordance with regulations prescribed by the Board of Review for determining the rights of the parties, whether or not such regulations conform to common law or statutory rules of evidence and other technical rules of procedure. A full and complete record shall be kept of all proceedings in connection with an appealed claim. The department's entire file relative to the appealed claim shall be a part of such record and shall be considered as evidence. All testimony at any hearing upon an appealed claim shall be recorded, but need not be transcribed unless the claim is further appealed.
§ 71-5-527
Witnesses subpoenaed pursuant to Sections 71-5-515 to 71-5-533 shall be allowed fees at a rate fixed by the commission. Such fees shall be deemed a part of the expense of administering this chapter.
§ 71-5-529
Any decision of the Board of Review, in the absence of an appeal therefrom as herein provided, shall become final ten (10) days after the date of notification; and judicial review thereof shall be permitted only after any party claiming to be aggrieved thereby has exhausted his administrative remedies as provided by this chapter. The department shall be deemed to be a party to any judicial action involving any such decision, and may be represented in any such judicial action by any qualified attorney employed by the department and designated by it for that purpose or, at the department's request, by the Attorney General.
§ 71-5-531
Within ten (10) days after the decision of the Board of Review has become final, any party aggrieved thereby may secure judicial review thereof by commencing an action, in the circuit court of the county in which the plaintiff resides, against the department for the review of such decision, in which action any other party to the proceeding before the Board of Review shall be made a defendant. In cases wherein the plaintiff is not a resident of the State of Mississippi, such action may be filed in the circuit court of the county in which the employer resides, the county in which the cause of action arose, or in the county of employment. In such action, a petition which need not be verified, but which shall state the grounds upon which a review is sought, shall be served upon the department or upon such person as the department may designate, and such service shall be deemed completed service on all parties; but there shall be left with the party so served as many copies of the petition as there are defendants, and the department shall forthwith mail one (1) such copy to each such defendant. With its answer, the department shall certify and file with said court all documents and papers and a transcript of all testimony taken in the matter, together with the Board of Review's findings of fact and decision therein. The department may also, in its discretion, certify to such court questions of law involved in any decision. In any judicial proceedings under this section, the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. Such actions, and the questions so certified, shall be heard in a summary manner and shall be given precedence over all other civil cases. An appeal may be taken from the decision of the circuit court of the county in which the plaintiff resides to the Supreme Court of Mississippi, in the same manner, but not inconsistent with the provisions of this chapter, as is provided in civil cases. It shall not be necessary, in any judicial proceeding under this section, to enter exceptions to the rulings of the Board of Review, and no bond shall be required for entering such appeal. Upon the final determination of such judicial proceeding, the Board of Review shall enter an order in accordance with such determination. A petition for judicial review shall not act as a supersedeas or stay unless the Board of Review shall so order.
§ 71-5-533
The commission shall be authorized to appeal from decisions of the board of review involving questions of interpretation of this chapter. Such appeals shall be served upon the other parties to the decision of the board of review and shall be heard by the courts in the manner as provided in Section 71-5-531. Such an appeal by the commission under this section shall not have the effect of denying benefits to any claimant who has been awarded benefits by virtue of the decision of the board of review from which the appeal is taken.
§ 71-5-535
Any agreement by an individual to waive, release, or commute his right to benefits or any other rights under this chapter shall be void. Any agreement by any individual in the employ of any person or concern to pay all or any portion of an employer's contributions, required under this chapter from such employer, shall be void. No employer shall directly or indirectly make or require or accept any deduction from wages to finance the employer's contributions required from him, or require or accept any waiver of any right hereunder by any individual in his employ. Any employer or officer or agent of an employer who violates any provision of this section shall, for each offense, be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00), or be imprisoned for not more than six (6) months, or both.
§ 71-5-537
No individual claiming benefits shall be charged fees of any kind in any proceeding under this chapter by the board of review, the commission, their representatives, or by any court or any officer thereof. Any individual claiming benefits in any proceedings before the commission, the board of review, their representatives, or a court may be represented by counsel or other duly authorized agent; but no such counsel or agents shall either charge or receive for such services more than an amount approved by the board of review. Any person who violates any provision of this section shall, for each such offense, be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00), or imprisoned for not more than six (6) months, or both.
§ 71-5-539
Any assignment, pledge or incumbrance of any right to benefits which are or may become due or payable under this chapter shall be void. Such rights to benefits shall be exempt from levy, execution, attachment or any other remedy whatsoever provided for the collection of debt; and benefits received by any individual, so long as they are not mingled with other funds of the recipient, shall be exempt from any remedy whatsoever for the collection of all debts except debts incurred for necessities furnished to such individual or his spouse or dependents during the time when such individual was unemployed. Any waiver of any exemption provided in this section shall be void. This section does not apply to the deduction from benefits provided by Section 71-5-516.
§ 71-5-541
A. (1) In the administration of this chapter, the department shall cooperate with the Department of Labor to the fullest extent consistent with the provisions of this chapter and shall take such action, through the adoption of appropriate rules, regulations, administrative methods and standards, as may be necessary to secure to this state and its citizens all advantages available under the provisions of the Social Security Act that relate to unemployment compensation, the Federal Unemployment Tax Act, the Wagner-Peyser Act and the Federal-State Extended Unemployment Compensation Act of 1970, all as amended.
(2) In the administration of the provisions of this section, which are enacted to conform with the requirements of the Federal-State Extended Unemployment Compensation Act of 1970, as amended, the department shall take such actions as may be necessary:
(a) To ensure that the provisions are so interpreted and applied as to meet the requirements of such federal act as interpreted by the United States Department of Labor; and
(b) To secure to this state the full reimbursement of the federal share of extended benefits paid under this chapter that are reimbursable under the federal act; and also
(c) To limit the amount of extended benefits paid as may be necessary so that the reimbursement of the federal share of extended benefits paid shall remain at one-half ( 1/2 ) of the total extended benefits paid.
B. As used in this section, unless the context clearly requires otherwise:
(1) “Extended benefit period” means a period which:
(a) Begins with the third week after a week for which there is a state “on” indicator; and
(b) Ends with either of the following weeks, whichever occurs later:
(i) The third week after the first week for which there is a state “off” indicator; or
(ii) The thirteenth consecutive week of such period.
No extended benefit period may begin by reason of a state “on” indicator before the fourteenth week following the end of a prior extended benefit period which was in effect with respect to this state.
(2) For weeks beginning after September 25, 1982, there is a “state ‘on’ indicator” for a week if the rate of insured unemployment under this chapter for the period consisting of such week and the immediately preceding twelve (12) weeks:
(a) Equaled or exceeded one hundred twenty percent (120%) of the average of such rates for the corresponding period of thirteen (13) weeks ending in each of the preceding two (2) calendar years; and
(b) Equaled or exceeded five percent (5%).
The determination of whether there has been a state “on” or “off” indicator beginning or ending any extended benefit period shall be made under this subsection as if (i) paragraph (2) did not contain subparagraph (a) thereof, and (ii) the figure “5” contained in subparagraph (b) thereof were “6”; except that, notwithstanding any such provision of this subsection, any week for which there would otherwise be a “state ‘on’ indicator” shall continue to be such week and shall not be determined to be a week for which there is a “state ‘off’ indicator.”
(3) There is a “state ‘off’ indicator” for a week if, for the period consisting of such week and the immediately preceding twelve (12) weeks, either subparagraph (a) or (b) of paragraph (2) was not satisfied.
(4) “Rate of insured unemployment,” for purposes of paragraphs (2) and (3) of this subsection, means the percentage derived by dividing:
(a) The average number of continued weeks claimed for regular state compensation in this state for weeks of unemployment with respect to the most recent period of thirteen (13) consecutive weeks, as determined by the department on the basis of its reports to the United States Secretary of Labor; by
(b) The average monthly employment covered under this chapter for the first four (4) of the most recent six (6) completed calendar quarters ending before the end of such period of thirteen (13) weeks.
(5) “Regular benefits” means benefits payable to an individual under this chapter or under any other state law (including benefits payable to federal civilian employees and to ex-servicemen pursuant to 5 USCS Section 8501-8525) other than extended benefits.
(6) “Extended benefits” means benefits (including benefits payable to federal civilian employees and to ex-servicemen pursuant to 5 USCS Section 8501-8525) payable to an individual under the provisions of this section for weeks of unemployment in his eligibility period.
(7) “Eligibility period” of an individual means the period consisting of the weeks in his benefit year which begin in an extended benefit period and, if his benefit year ends within such extended benefit period, any weeks thereafter which begin in such period.
(8) “Exhaustee” means an individual who, with respect to any week of unemployment in his eligibility period:
(a) Has received, prior to such week, all of the regular benefits that were available to him under this chapter or any other state law (including dependents' allowances and benefits payable to federal civilian employees and ex-servicemen under 5 USCS Section 8501-8525) in his current benefit year that includes such week.
For the purposes of this subparagraph, an individual shall be deemed to have received all of the regular benefits that were available to him although, as a result of a pending appeal with respect to wages that were not considered in the original monetary determination in his benefit year, he may subsequently be determined to be entitled to added regular benefits; or
(b) Has no, or insufficient, wages on the basis of which he could establish a new benefit year that would include such week, his benefit year having expired prior to such week; and
(c)(i) Has no right to unemployment benefits or allowances, as the case may be, under the Railroad Unemployment Insurance Act, the Trade Expansion Act of 1962, the Automotive Products Trade Act of 1965, and such other federal laws as are specified in regulations issued by the United States Secretary of Labor; and
(ii) Has not received and is not seeking unemployment benefits under the Unemployment Compensation Law of the Virgin Islands or of Canada; but if he is seeking such benefits and the appropriate agency finally determines that he is not entitled to benefits under such law, he is considered an exhaustee; however, the reference in this subsection to the Virgin Islands shall be inapplicable effective on the day on which the United States Secretary of Labor approves under Section 3304(a) of the Internal Revenue Code of 1954, an unemployment compensation law submitted to the Secretary by the Virgin Islands for approval.
(9) “State law” means the unemployment insurance law of any state, approved by the United States Secretary of Labor under Section 3304 of the Internal Revenue Code of 1954 (26 USCS Section 3304).
C. Except when the result would be inconsistent with the other provisions of this section, as provided in the regulations of the department, the provisions of this chapter which apply to claims for, or the payment of, regular benefits shall apply to claims for, and the payment of, extended benefits.
D. An individual shall be eligible to receive extended benefits with respect to any week of unemployment in his eligibility period only if the department finds that with respect to such week:
(1) He is an “exhaustee” as defined in subsection B(8) of this section.
(2) He has satisfied the requirements of this chapter for the receipt of regular benefits that are applicable to individuals claiming extended benefits, including not being subject to a disqualification for the receipt of benefits.
(3) For a week beginning after September 25, 1982, he has, during his base period, been paid wages for insured work equal to not less than forty (40) times his weekly benefit amount; he has been paid wages for insured work during at least two (2) quarters of his base period, and he has, during that quarter of his base period in which his total wages were highest, been paid wages for insured work equal to not less than twenty-six (26) times the minimum weekly benefit amount.
E. The weekly extended benefit amount payable to an individual for a week of total unemployment in his eligibility period shall be an amount equal to the weekly benefit amount payable to him during his applicable benefit year; however, benefits paid to individuals during eligibility periods beginning before October 1, 1983, shall be computed to the next higher multiple of One Dollar ($1.00), if not a multiple of One Dollar ($1.00); and benefits paid to individuals during eligibility periods beginning on or after October 1, 1983, shall be computed to the next lower multiple of One Dollar ($1.00), if not a multiple of One Dollar ($1.00).In no event shall the weekly extended benefit amount payable to an individual be more than two (2) times the amount of the reimbursement of the federal share of extended benefits paid.
F. (1) The total extended benefit amount payable to any eligible individual with respect to his applicable benefit year shall be the least of the following amounts:
(a) Fifty percent (50%) of the total amount of regular benefits which were payable to him under this chapter in his applicable benefit year; however, benefits paid to individuals during eligibility periods beginning before October 1, 1983, shall be computed to the next higher multiple of One Dollar ($1.00), if not a multiple of One Dollar ($1.00), and benefits paid to individuals during eligibility periods beginning on or after October 1, 1983, shall be computed to the next lower multiple of One Dollar ($1.00), if not a multiple of One Dollar ($1.00); or
(b) Thirteen (13) times his weekly benefit amount which was payable to him under this chapter for a week of total unemployment in the applicable benefit year.
(2) The total extended benefits otherwise payable to an individual who is filing an interstate claim under the interstate benefit payment plan shall not exceed two (2) weeks whenever an extended benefit period is not in effect for such week in the state where the claim is filed.
(3) In no event shall the total extended benefit amount payable to any eligible individual with respect to his applicable benefit year be more than two (2) times the amount of the reimbursement of the federal share of extended benefits paid.
G. (1) Whenever an extended benefit period is to become effective in this state as a result of a state “on” indicator, or an extended benefit period is to be terminated in this state as a result of state “off” indicators, the department shall make an appropriate public announcement.
(2) Computations required by the provisions of subsection B(4) shall be made by the department, in accordance with regulations prescribed by the United States Secretary of Labor.
H. Extended benefits paid under the provisions of this section which are not reimbursable from federal funds shall be charged to the experience-rating record of base period employers.
I. (1) Notwithstanding the provisions of subsections C and D of this section, an individual shall be disqualified for receipt of extended benefits if the department finds that during any week of his eligibility period:
(a) He has failed either to apply for or to accept an offer of suitable work (as defined under paragraph (3)) to which he was referred by the department; or
(b) He has failed to furnish tangible evidence that he has actively engaged in a systematic and sustained effort to find work, unless such individual is not actively engaged in seeking work because such individual is:
(i) Before any court of the United States or any state pursuant to a lawfully issued summons to appear for jury duty;
(ii) Hospitalized for treatment of an emergency or a life-threatening condition.
The entitlement to benefits of any individual who is determined not to be actively engaged in seeking work in any week for the foregoing reasons shall be decided pursuant to the able and available requirements in Section 71-5-511 without regard to the disqualification provisions otherwise applicable under Section 71-5-541. The conditions prescribed in clauses (i) and (ii) of this subparagraph (b) must be applied in the same manner to individuals filing claims for regular benefits.
(2) Such disqualification shall begin with the week in which such failure occurred and shall continue until he has been employed in each of eight (8) subsequent weeks (whether or not consecutive) and has earned remuneration for personal services performed for an employer, as in this chapter defined, equal to not less than eight (8) times his weekly extended benefit amount.
(3) For the purpose of subparagraph (a) of paragraph (1) the term “suitable work” means any work which is within the individual's capabilities to perform, if:
(a) The gross average weekly remuneration payable for the work exceeds the sum of the individual's weekly extended benefit amount plus the amount, if any, of supplemental unemployment benefits (as defined in Section 501(c)(17)(D) of the Internal Revenue Code of 1954) payable to such individual for such week;
(b) The wages payable for the work equal the higher of the minimum wages provided by Section 6(a)(1) of the Fair Labor Standards Act of 1938 (without regard to any exemption), or the state or local minimum wage; and
(c) The position was offered to the individual in writing or was listed with the state employment service; and
(d) Such work otherwise meets the definition of “suitable work” for regular benefits contained in Section 71-5-513A(4) to the extent that such criteria of suitability are not inconsistent with the provisions of this paragraph (3); and
(e) The individual cannot furnish satisfactory evidence to the department that his prospects for obtaining work in his customary occupation within a reasonably short period are good. If such evidence is deemed satisfactory for this purpose, the determination of whether any work is suitable with respect to such individual shall be made in accordance with the definition of suitable work contained in Section 71-5-513A(4) without regard to the definition specified by this paragraph (3).
(4) Notwithstanding any provisions of subsection I to the contrary, no work shall be deemed to be suitable work for an individual which does not accord with the labor standard provisions set forth herein under Section 71-5-513A(4).
(5) The employment service shall refer any claimant entitled to extended benefits under this section to any suitable work which meets the criteria prescribed in paragraph (3).
(6) An individual shall be disqualified for extended benefits for the week, or fraction thereof, which immediately follows the day on which he left work voluntarily without good cause (as defined in Section 71-5-513A(1)), was discharged for misconduct connected with his work, or refused suitable work (except as provided in subsection I of this section), and for each week thereafter until he has earned remuneration for personal services performed for an employer, as in this chapter defined, equal to not less than eight (8) times his weekly benefit amount, as determined in each case.
(7) The provisions of paragraphs I(1) through (6) of this section shall not apply to claims for weeks of unemployment beginning after March 6, 1993, and before January 1, 1995, and during that period the provisions of this chapter applicable to claims for regular compensation shall apply.
J. Notwithstanding any other provisions of this chapter, if the benefit year of any individual ends within an extended benefit period, the remaining balance of extended benefits that such individual would, but for this section, be entitled to receive in that extended benefit period, with respect to weeks of unemployment beginning after the end of the benefit year, shall be reduced (but not below zero) by the product of the number of weeks for which the individual received any amounts as trade readjustment allowances within that benefit year, multiplied by the individual's weekly benefit amount for extended benefits.
§ 71-5-543
(1) Except as otherwise provided in this section, the executive director of the department may waive recovery of benefits paid under this chapter to a person if the person is subsequently found to be ineligible for the benefit and the benefits were paid as a direct result of unemployment caused by a natural disaster which is declared by the President of the United States in accordance with Section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act. 1 All waivers shall be granted based upon a consistent methodology and shall include consideration of ability to repay and other similar considerations.
(2) The waiver authorized in subsection (1) of this section shall not be granted if:
(a) The individual receiving the benefit is found to be guilty of fraud involving filing for, or receipt of, the benefits; or
(b) The size of fund index (as defined in Section 71-5-355) for the year in which a request for a waiver is made is less than five-tenths (.5)
(3) All waiver requests shall be considered on a case by case basis.
1
See 42 U.S.C.A. § 5170.
§ 71-5-545
(1) Definitions. As used in this section:
(a) “Self-employment assistance activities” means activities (including entrepreneurial training, business counseling, technical assistance and any other requirements set forth by the executive director in regulation) approved by the executive director in which an individual, identified through an established system consistent with the system requirements of Section 303(j)(1)(A) of the Social Security Act (SSA) as likely to exhaust regular unemployment benefits, participates for the purpose of establishing a business and becoming self-employed.
(b) “Self-employment assistance allowance” means an allowance, payable in lieu of, and on the same schedule as, regular benefits and from the unemployment fund established under Section 71-5-451, to an individual participating in self-employment assistance activities who meets the requirements of this section.
(c) “Regular benefits” means benefits payable to an individual under this chapter (including benefits payable to Federal civilian employees and to ex-service members pursuant to 5 USC Chapter 85) excluding emergency unemployment benefits and extended benefits.
(d) “Full-time basis” shall have the meaning contained in regulations prescribed by the executive director who has authority to set, modify and rescind such regulations as are required for the proper and efficient administration of this section.
(e) “SEAP” means the Self-Employment Assistance Program.
(2) Amount of self-employment assistance allowance. The weekly allowance payable under this section to an individual shall be equal to the weekly benefit amount for regular benefits otherwise payable under Section 71-5-503.
The sum of (a) the allowance paid under this section, and (b) regular benefits paid under this chapter with respect to any benefit year shall not exceed the maximum benefit amount as established by Section 71-5-507 with respect to such benefit year.
(3) Eligibility for self-employment assistance allowance. The allowance described in subsection (1) of this section shall be payable to an individual at the same interval, on the same terms, and subject to the same conditions as regular benefits under this chapter, except that:
(a) The requirements of Sections 71-5-511 and 71-5-513 relating to availability for work, active search for work, and refusal to accept work are not applicable to an individual while engaged in establishment of a business;
(b) The requirements of Section 71-5-505 relating to other earnings are not applicable to income earned from self-employment by such individual while engaged in establishment of a business;
(c) An individual who meets the requirements of this section shall be considered to be unemployed under Section 71-5-501 et seq.; and
(d) An individual who fails to participate in self-employment assistance activities as prescribed by this section or by the executive director, or who fails to actively engage on a full-time basis in activities (which may include training) relating to the establishment of a business and becoming self-employed, shall be disqualified for any week in which the failure occurs.
(4) Limitation on receipt of self-employment assistance allowances. The aggregate number of individuals receiving the allowance under this section at any time shall not exceed five percent (5%) of the number of individuals receiving regular benefits as defined in Section 71-5-541.
(5) Steering committee membership. The executive director shall appoint a steering committee. Each member of the steering committee shall have equal voting rights on the SEAP Steering Committee. The voting members of the board who are not state employees or state elected officials shall be entitled to reimbursement of their reasonable expenses incurred in carrying out their duties under this chapter, from any funds available for that purpose.
(6) Steering committee purpose. The steering committee shall initially adopt the rules of operation for the SEAP and shall select and certify SEAP training programs. The rules shall be enforced by the department. Rules shall include the continuing role of the steering committee. Participants in training programs that are not certified by the SEAP shall not be paid SEAP benefits and any benefits paid to them shall be considered overpaid and shall be due to be repaid to the department and the Unemployment Trust Fund.
(7) Rules and regulations for operation of SEAP by the Mississippi Department of Employment Security . The executive director shall cause regulations adopted by the SEAP Steering Committee to be adopted by the department and the executive director may adopt other regulations as necessary for proper administration of this section.
(8) Financing costs of self-employment assistance allowances. Allowances paid under this section shall not be charged to employers as provided under provisions of this chapter relating to the noncharging of regular benefits as defined in Section 71-5-541, and shall be used in the computation of the annual unemployment tax rate as noncharges for receipt of unemployment benefits paid by this chapter. Noncharging provisions do not apply to unemployment compensation for federal employees, unemployment compensation for ex-servicemen or unemployment compensation paid to individuals based upon their wages earned with reimbursing employers, except as allowed by Section 71-5-357(b)(iv). In the event federal regulations allow changes to noncharging provisions associated with the SEAP, regulations may be adopted by the SEAP Steering Committee to make such changes as are reasonable and appropriate to the Mississippi program and charging or not charging of SEAP benefits.
(9) Federal law and regulations. Nothing in this section or the rules adopted related to this section or any other provision of this chapter is intended to be inconsistent with laws and regulations prescribed by the United States Department of Labor. Any part of this section or this chapter that is determined to not be in conformity with United State Department of labor regulations and applicable federal laws will not be enforced until such time as the deficiencies can be remedied.
(10) Effective date and termination date. The provisions of this section will apply to weeks beginning on or after the first Sunday sixty (60) days following passage, or after any plan required by the United States Department of Labor is approved by such department, whichever date is later. The authority provided by this section shall terminate as of the end of the week preceding the date when federal law no longer authorizes the provisions of this section, unless such date is a Saturday in which case the authority shall terminate as of such date.
§ 71-5-547
This section describes the minimum requirements that the Mississippi Department of Employment Security must meet related to its activities concerning fraud prevention, detection and recovery.
(1) The Mississippi Department of Employment Security (“department”) shall focus upon the prevention and detection of fraud with respect to the payment of unemployment insurance benefits and the collection of tax contributions. In furtherance of these goals, the department shall take the following steps to enhance its recovery efforts:
(a) The executive director of the department shall adopt and implement internal administrative policies, business processes and regulations as necessary to:
(i) Pursue recovery of improper overpayments of unemployment benefits to the extent permitted by state and federal law;
(ii) Require all employers to promptly notify the department within ten (10) business days of an individual's refusal of an offer of suitable work;
(iii) Authorize the department to use all available technological resources, including the Integrity Data Hub and the National Directory of New Hires, or any other sources, to verify newly hired and re-hired employees reported under state and federal law, in a manner which shall facilitate the reduction of fraudulent unemployment insurance applications;
(iv) Authorize the department to use any available technological resources to verify by cross-match, or any other current method, any and all claims associated with potentially fraudulent applications or overpayments reported under state and federal law;
(v) Create a regulation governing the frequency that new hire and incarceration verification is checked; and
(vi) Authorize the department to require employers to promptly respond to all cross-match wage requests.
(2) To further the department's efforts in the area of fraud prevention, detection, and recovery of fraudulently obtained unemployment insurance benefits:
(a) The department shall be authorized to take all enforcement and administrative steps appropriate to ensure claimants who refuse offers of suitable work do not receive undue unemployment benefits and are referred to the appropriate office for internal investigation;
(b) All state agencies, political subdivisions, including, but not limited to, any and all state law enforcement entities, shall promptly respond to all requests for information from the department for the prevention and detection of fraud and the recovery of fraudulently paid benefits or improperly withheld unemployment insurance tax contributions. No state political subdivision may impede or delay any fraud prevention, detection or recovery efforts of the department; and
(c) All state agencies, departments, divisions, boards and other political subdivisions shall be required to share data for the prevention and detection of fraud and the recovery of fraudulent paid benefits or improperly withheld unemployment insurance tax contributions with the department to enable the detection and prevention of unemployment insurance fraud. The department shall have the authority to execute a memorandum of understanding with any state agency, department, division, board or other political subdivision for information required to be shared between agencies for the purposes outlined in this section.
(3) The department shall be authorized to promulgate any and all necessary rules and regulations, at the discretion of the executive director or his or her designee, to implement the provisions of this section in keeping with its mission of fraud prevention, detection, and recovery, in accordance with Section 71-5-117.
Chapter 7 Drug and Alcohol Testing of Employees
§ 71-7-1
As used in this chapter, the following terms shall have the meaning ascribed to them herein unless the context requires otherwise:
(a) “Confirmation test” means a drug and alcohol test on a specimen to substantiate the results of a prior drug and alcohol test on the specimen. The confirmation test must use an alternate method of equal or greater sensitivity than that used in the previous drug and alcohol test.
(b) “Drug” means an illegal drug, or a prescription or nonprescription medication.
(c) “Alcohol” means ethyl alcohol.
(d) “Drug and alcohol test” means a chemical test administered for the purpose of determining the presence or absence of a drug or metabolites in a person's body fluids.
(e) “Employee” means any person who supplies a service for remuneration or pursuant to any contract for hire to a private or public employer in this state.
(f) “Employee assistance program” means a program provided by an employer offering assessment, short-term counseling and referral services to employees, including drug, alcohol and mental health programs.
(g) “Employer” means any individual, organization or government body, subdivision or agency thereof, including partnership, association, trustee, estate, corporation, joint-stock company, insurance company or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air or express company doing business in or operating within this state, which has one or more employees within this state, or which has offered or may offer employment to one or more individuals in this state.
(h) “Illegal drug” means any substance, other than alcohol, having psychological and/or physiological effects on a human being and that is not a prescription or nonprescription medication, including controlled dangerous substances and controlled substance analogs or volatile substances which produce the psychological and/or physiological effects of a controlled dangerous substance through deliberate introduction into the body.
(i) “Initial test” means an initial drug test to determine the presence or absence of drugs or their metabolites in specimens.
(j) “Laboratory” means any laboratory that is currently certified or accredited by the federal Clinical Laboratory Improvement Act, as amended, by the federal Substance Abuse and Mental Health Services Administration, by the College of American Pathologists, or that has been deemed by the State Board of Health to have been certified or accredited by an appropriate federal agency, organization or another state.
(k) “Neutral selection basis” means a mechanism for selecting employees for drug tests that: (i) results in an equal probability that any employee from a group of employees subject to the selection mechanism will be selected, and (ii) does not give an employer discretion to waive the selection of any employee selected under the mechanism.
(l) “Prescription or nonprescription medication” means a drug prescribed for use by a duly licensed physician, dentist or other medical practitioner licensed to issue prescriptions or a drug that is authorized pursuant to federal or state law for general distribution and use without a prescription in the treatment of human diseases, ailments or injuries.
(m) “Reasonable suspicion drug and alcohol testing” means drug and alcohol testing based on a belief that an employee is using or has used drugs in violation of the employer's policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience, and may be based upon, among other things:
(i) Observable phenomena, such as direct observation of drug use and/or the physical symptoms or manifestations of being under the influence of a drug;
(ii) Abnormal conduct or erratic behavior while at work, absenteeism, tardiness or deterioration in work performance;
(iii) A report of drug use provided by reliable and credible sources and which has been independently corroborated;
(iv) Evidence that an individual has tampered with a drug and alcohol test during his employment with the current employer;
(v) Information that an employee has caused or contributed to an accident while at work;
(vi) Evidence that an employee is involved in the use, possession, sale, solicitation or transfer of drugs while working or while on the employer's premises or operating the employer's vehicle, machinery or equipment.
(n) “Specimen” means a tissue or product of the human body chemically capable of revealing the presence of drugs in the human body.
§ 71-7-3
(1) For the purposes of this chapter, the election of a public or private employer to conduct drug and alcohol testing is voluntary. If an employer elects voluntarily to follow this chapter, the employer must follow all the terms of this chapter without exception.
(2) Any employee who may be required by an employer to submit to a drug and alcohol test shall be provided, at least thirty (30) days prior to the implementation of a drug and alcohol testing program, a written policy statement from the employer which contains:
(a) A general statement of the employer's policy on employee drug use which shall include identifying both the grounds on which an employee may be required to submit to a drug and alcohol test and the actions the employer may take against an employee on the basis of a positive confirmed drug and alcohol test result, or other violation of the employer's drug use policy;
(b) A statement advising the employee of the existence of this chapter;
(c) A general statement concerning confidentiality;
(d) Procedures for how employees can confidentially report the use of prescription or nonprescription medications prior to being tested;
(e) Circumstances under which drug and alcohol testing may occur, and a description of which positions will be subject to testing on a reasonable suspicion, neutral selection or other basis;
(f) The consequences of refusing to submit to a drug and alcohol test;
(g) Information on opportunities for assessment and rehabilitation if an employee has a positive confirmed test result and the employer determines that discipline or discharge are not necessary or appropriate;
(h) A statement that an employee who receives a positive confirmed drug and alcohol test result may contest the accuracy of that result or explain it;
(i) A list of all drugs for which the employer might test. Each drug shall be described by its brand name, common name, or its chemical name;
(j) A statement regarding any applicable collective bargaining agreement or contract.
(3) An employer shall post the notice in an appropriate and conspicuous location on the employer's premises and copies of the policy shall be made available for inspection during regular business hours by employees in the employer's personnel office or other suitable locations.
(4) The State Board of Health shall develop standard language for those sections of drug and alcohol testing notices described in paragraphs (b), (c) and (d) of subsection (2) of this section.
(5) An employer who conducts job applicant drug and alcohol testing shall notify the applicant, in writing, upon application and prior to the collection of the specimen for the drug and alcohol test, that the applicant may be tested for the presence of drugs or their metabolites.
(6) An employee or job applicant required to submit to a drug and alcohol test may be requested by an employer to sign a statement indicating that he has read and understands the employer's drug and alcohol testing policy and/or notice. An employee's or job applicant's refusal to sign such a statement shall not invalidate the results of any drug and alcohol test, or bar the employer from administering the drug and alcohol test or from taking action consistent with the terms of an applicable collective bargaining agreement or the employer's drug and alcohol testing policy, or from refusing to hire the job applicant.
(7) If the employer is a government employer, the decision of whether to require employees and/or applicants for employment to submit to drug and alcohol tests in accordance with the provisions of this chapter shall be made by the executive head or governing body of the department, agency, institution or political subdivision authorized to employ. However, in the case of any elected public official of the State of Mississippi or of any department, agency, institution or political subdivision thereof, the decision of whether any person who such official is authorized to employ, or any person who any governing board, commission or body upon which or as a member of which such public official has been elected by the people to serve is authorized to employ, shall be required to submit to a drug and alcohol test in accordance with the provisions of this chapter shall be made:
(a) By the governing board, commission or body upon which or as a member of which such public official has been elected to serve; or
(b) If the elected public official has not been elected to serve upon or as a member of a governing board, commission or body, by the elected official himself.
§ 71-7-5
(1) Except as otherwise provided in Section 71-7-27, all drug and alcohol testing conducted by employers shall be in conformity with the standards established in this section, other applicable provisions of this chapter, and all applicable regulations promulgated pursuant to this chapter.
(2) An employer is authorized to conduct the following types of drug and alcohol tests:
(a) Employers may require job applicants to submit to a drug and alcohol test as a condition of the employment application and may use a refusal to submit to a test or positive confirmed test result as a basis for refusal to hire.
(b) An employer may require all employees to submit to reasonable suspicion drug and alcohol testing. There is created a rebuttable presumption that the employer had reasonable suspicion to test for drugs if the specimen provided by the employee tested positive for drugs in a confirmatory drug test.
(c) An employer may require all employees to submit to neutral selection drug and alcohol testing pursuant to Section 71-7-9.
(d) An employer may administer drug and alcohol testing or require that the employee submit himself to drug and alcohol testing as provided under Section 71-3-121 in the event that the employee sustains an injury at work or asserts a work-related injury.
§ 71-7-7
(1) Subject to the provisions of this chapter and any applicable collective bargaining agreement or contract, any nongovernment employer may require as a condition of employment or as a condition of continued employment that employees submit to neutral selection drug and alcohol testing.
(2) Subject to the provisions of this chapter, any government employer may require as a condition of employment or as a condition of continued employment that employees submit to neutral selection drug and alcohol testing; provided, however, that the employees tested and the criteria for such testing shall be determined by the government employer, based upon the extent to which the government employer:
(a) Is engaged in law enforcement;
(b) Has national or state security responsibilities;
(c) Has drug interdiction responsibilities; or
(d) Has positions which:
(i) Authorize employees to carry firearms;
(ii) Give employees access to sensitive information;
(iii) Authorize employees to engage in law enforcement;
(iv) Require employees, as a condition of employment, to obtain a security clearance; or
(v) Require employees to engage in activities affecting public health or safety.
(3) An employer may require an employee to submit to a drug and alcohol test if the test is conducted as part of a routinely scheduled employee fitness for duty medical examination that is part of the employer's established policy and/or which is scheduled routinely for all members of an employment classification or group.
(4) An employer may require an employee to submit to neutral selection or routine drug and alcohol tests if the employee in the course of his employment enters a drug abuse rehabilitation program, and as a follow-up to such rehabilitation, or if previous drug and alcohol testing of the employee within a twelve-month period resulted in a positive confirmed test result, or the drug and alcohol test is conducted in accordance with the terms of an applicable collective bargaining agreement or contract that permits the employer to administer drug and alcohol tests on a neutral selection or routine basis.
(5) If an employee is participating in drug abuse rehabilitation, drug and alcohol testing may be conducted by the rehabilitation provider as deemed appropriate by the provider.
§ 71-7-9
(1) The collection of specimens shall be performed under reasonable and sanitary conditions. Individual dignity shall be preserved to the extent practicable.
(2) Specimens shall be collected in a manner reasonably calculated to prevent substitution of specimens and interference with the collection or testing of specimens.
(3) Specimen collection shall be documented, and the documentation procedures shall include:
(a) Labeling of specimen containers so as to reasonably preclude the likelihood of erroneous identification of test results; and
(b) An opportunity for the employee or applicant to provide any information that he considers relevant to the test, including identification of currently or recently used prescription or nonprescription drugs, or other relevant medical information. The provision of this information shall not preclude the administration of the drug and alcohol test, but shall be taken into account in interpreting any positive confirmed results.
(4) Specimen collection, storage and transportation to the testing site will be performed in a manner which will reasonably preclude specimen contamination or adulteration, and specimen testing for drugs shall conform to scientifically accepted analytical methods and procedures.
(5) Each confirmation test conducted under this chapter, not including the taking or collecting of a specimen to be tested, shall be conducted by a laboratory.
(6) A specimen for a drug and alcohol test may be taken or collected by any of the following persons:
(a) A physician, a registered nurse or a licensed practical nurse;
(b) A qualified person employed by a laboratory; or
(c) Any person deemed qualified by the State Board of Health.
(7) A person who collects or takes a specimen for a drug and alcohol test conducted pursuant to this chapter shall collect an amount sufficient for at least two (2) drug and alcohol tests as defined by federal statutes and regulations.
(8) Any drug and alcohol testing conducted or requested by an employer shall occur during or immediately after the regular work period of current employees, and shall be deemed to be performed during work time for purposes of determining compensation and benefits for current employees.
(9) Every specimen that produces a positive confirmed result shall be preserved in a frozen state by the laboratory that conducts the confirmation test for a period of ninety (90) days from the time the results of the positive confirmed test are mailed or otherwise delivered to the employer. During this period, the employee who has provided the specimen shall be permitted by the employer to have a portion of the specimen retested, at the employee's expense, at a laboratory chosen by the employee. The laboratory that has performed the test for the employer shall be responsible for the transfer of the portion of the specimen to be retested, and for the integrity of the chain of custody during such transfer.
(10) Within five (5) working days after receipt of a positive confirmed test result report from the laboratory that conducted the test, an employer shall, in writing, inform an employee of such positive test result and inform the employee in writing of the consequences of such a report and the options available to him.
(11) An employee may request and receive from the employer a copy of the test result report.
(12) Within ten (10) working days after receiving notice of a positive confirmed test result, the employee may submit information to an employer explaining the test results, and why the results do not constitute a violation of the employer's policy. If an employee's explanation of the positive test results is not satisfactory to the employer, a written explanation submitted by the employer as to why the employee's explanation is unsatisfactory, along with the report of positive results, shall be made a part of the employee's medical and personnel records.
(13) Except as otherwise provided in Section 71-7-13(10), an employer may not discharge, discipline, refuse to hire, discriminate against, or request or require rehabilitation of an employee on the basis of a positive test result that has not been verified by a confirmatory test.
(14) An employer may not discharge, discipline, discriminate against or request or require rehabilitation of an employee on the basis of medical history information revealed to the employer pursuant to this chapter unless the employee had an affirmative obligation to provide such information before, upon or after hire.
(15) An employer who performs on-site drug and alcohol tests or specimen collection shall establish chain-of-custody procedures to ensure proper record keeping, handling, labeling and identification of all specimens to be tested.
(16) The employer shall pay the costs of all drug and alcohol tests to which he requires, or requests, an employee or job applicant to submit. The employee or job applicant shall pay the costs of any additional drug and alcohol tests requested by the employee or job applicant.
§ 71-7-11
Only laboratories shall conduct confirmation drug and alcohol tests. All confirmation tests shall use an alternate method of equal or greater sensitivity than that used on the initial drug and alcohol test. If an initial drug and alcohol test is negative, there shall be no confirmation drug and alcohol test.
§ 71-7-13
(1) An employee or job applicant whose drug and alcohol test result is confirmed as positive in accordance with the provisions of this chapter shall not, by virtue of the result alone, be defined as a person with a “handicap.”
(2) An employer who discharges or disciplines an employee on the basis of a positive confirmed drug and alcohol test in accordance with this chapter shall be considered to have discharged or disciplined the employee for cause.
(3) An employee discharged on the basis of a confirmed positive drug and alcohol test in accordance with this chapter shall be considered to have been discharged for willful misconduct.
(4) A physician-patient relationship is not created between an employee or job applicant, and an employer or any person performing or evaluating the drug and alcohol test, solely by the establishment or implementation of a drug and alcohol testing program.
(5) This chapter does not prevent an employer from establishing reasonable work rules related to employee possession, use, sale or solicitation of drugs, including convictions for drug-related offenses, and taking action based upon a violation of any of those rules.
(6) This chapter shall not be retroactive and shall not abrogate any right an employer may have to conduct drug and alcohol tests prior to July 1, 1991. A drug and alcohol test conducted by an employer before July 1, 1991 shall not be subject to this chapter.
(7) If an employee refuses to submit to drug and alcohol testing administered in accordance with this chapter, the employer shall not be barred from discharging, or disciplining, or referring the employee to a drug abuse assessment, treatment and rehabilitation program at a site certified by the Department of Mental Health.
(8) An employer, in addition to any appropriate personnel actions, may refer any employee found to have violated the employer's policy on drug use to an employee assistance program for assessment, counseling and referral for treatment or rehabilitation as appropriate. Such treatment or rehabilitation shall be at a site certified by the Department of Mental Health.
(9) This chapter does not prohibit an employer from conducting medical screening or other tests required by any statute, rule or regulation for the purpose of monitoring exposure of employees to toxic or other unhealthy substances in the workplace or in the performance of job responsibilities. Such screenings or tests shall be limited to the specific substances expressly identified in the applicable statute, rule or regulation, unless prior written consent of the employee is obtained for other tests.
(10) An employer may temporarily suspend or transfer an employee to another position after obtaining the results of a positive on-site initial test. An employer may discharge an employee after obtaining the results of a positive confirmed test.
(11) Nothing in this chapter shall affect any right of an employer to terminate the employment of any person for reasons not related to a drug and alcohol testing program implemented pursuant to the provisions of this chapter.
§ 71-7-15
(1) All information, interviews, reports, statements, memoranda and test results, written or otherwise, received by the employer through its drug and alcohol testing program are confidential communications and may not be used or received in evidence, obtained in discovery, or disclosed in any public or private proceedings, except in accordance with this chapter.
(2) Any information obtained by an employer pursuant to this chapter shall be the property of the employer.
(3) An employer shall not release to any person other than the employee or job applicant, or employer medical, supervisory or other personnel, as designated by the employer on a need to know basis, information related to drug and alcohol test results unless:
(a) The employee or job applicant has expressly, in writing, granted permission for the employer to release such information;
(b) It is necessary to introduce a positive confirmed test result into an arbitration proceeding pursuant to a collective bargaining agreement, an administrative hearing under applicable state or local law, or a judicial proceeding, provided that information is relevant to the hearing or proceeding, or the information must be disclosed to a federal or state agency or other unit of the state or United States government as required under law, regulation or order, or in accordance with compliance requirements of a state or federal government contract, or disclosed to a drug abuse rehabilitation program for the purpose of evaluation or treatment of an employee; or
(c) There is a risk to public health or safety that can be minimized or prevented by the release of such information; provided, however, that unless such risk is immediate, a court order permitting the release shall be obtained prior to the release of the information.
(4) The confidentiality provisions provided for in this section shall not apply to other parts of an employee's or job applicant's personnel or medical files.
(5) If an employee refuses to sign a written consent form for release of information to persons as permitted in this chapter, the employer shall not be barred from discharging or disciplining the employee.
§ 71-7-19
(1) A laboratory shall disclose to the employer a written test result report within five (5) working days after the test.
(2) All laboratory reports of a test result shall, at a minimum, state:
(a) The name and address of the laboratory that performed the test and the positive identification of the person tested;
(b) Any positive confirmed drug and alcohol test results on a specimen which tested positive on an initial test, or a negative drug and alcohol test result on a specimen; provided, however, that reports should not make reference to initial or confirmatory tests when reporting positive or negative results;
(c) A list of the drugs tested for;
(d) The type of tests conducted for both initial and confirmation tests and the cut-off levels of the tests; and
(e) The report shall not disclose the presence or absence of any physical or mental condition or of any drug other than the specific drug and its metabolites that an employer requests to be identified.
§ 71-7-21
The State Board of Health shall adopt rules concerning:
(a) Standards for drug and alcohol testing laboratory certification, suspension and revocation of certification;
(b) Body specimens that are appropriate for drug and alcohol testing;
(c) Methods of analysis and procedures to ensure reliable drug and alcohol testing results, including standards for initial tests and confirmatory tests;
(d) Guidelines on how to establish cut-off detection levels for drugs or their metabolites for the purposes of determining a positive test result;
(e) Chain-of-custody procedures to ensure proper identification, labeling and handling of specimens being tested; and
(f) Retention and storage procedures to ensure reliable results on confirmation tests and retests.
§ 71-7-23
(1) A person alleging a violation of this chapter may bring an action for injunction relief or damages, or both.
(2) For the purposes of this chapter, damages shall be limited to the recovery of compensatory damages directly resulting from injury or loss caused by each violation of this chapter.
(3) A person or collective bargaining agent may bring an action under this section only after first exhausting all applicable grievance procedures and arbitration proceeding requirements under a collective bargaining agreement; provided, however, that the person's right to bring an action under this section shall not be affected by a decision of a collective bargaining agent not to pursue a grievance.
(4) If a violation of this chapter is found and damages are awarded, reasonable attorney fees may be awarded to the person if the court or arbitrator finds that an employer has knowingly or recklessly violated this chapter.
§ 71-7-25
(1) Upon an alleged violation of the provisions of this chapter, a person must institute a civil action in a court of competent jurisdiction within one (1) year of the alleged violation or the exhaustion of any internal administrative remedies available to the person, or be barred from obtaining the relief provided for in subsection (2) of this section.
(2) Relief for violations of this chapter shall be limited to:
(a) An injunction to restrain the continued violation of this chapter;
(b) The reinstatement of the person to the same position held before the unlawful drug and alcohol testing, disciplinary action or discharge, or to an equivalent position;
(c) The reinstatement of full employee benefits and seniority rights;
(d) Compensation for lost wages, benefits and other remuneration to which the person would have been entitled but for a violation of this chapter;
(e) Payment by the employer of reasonable costs.
(3) Any employer who complies with the provisions of this chapter shall be without liability from all civil actions arising from any drug and alcohol testing programs or procedures performed in compliance with this chapter.
(4) Pursuant to any claim alleging a violation of this chapter, including a claim under this chapter in which it is alleged that an employer's action with respect to a person was based on an incorrect test result, there shall be a rebuttable presumption that the test result was valid if the employer complied with the provisions of this chapter.
(5) No cause of action for defamation of character, libel, slander or damage to reputation arises in favor of any person against an employer who has established a program of drug and alcohol testing in accordance with this chapter, unless:
(a) Information regarded as confidential is released not in accordance with an information release form signed by the person or otherwise not in accordance with this chapter;
(b) The information disclosed was based on an incorrect test result;
(c) The incorrect test result was disclosed with malice; and
(d) All other elements of an action for defamation of character, libel, slander or damage to reputation as established by statute or common law, are satisfied.
(6) No cause of action shall arise in favor of any person based upon the failure of an employer to establish a program or policy for drug and alcohol testing.
§ 71-7-27
(1) A private employer may affirmatively elect to conduct an employee drug and alcohol testing policy or program pursuant to the provisions of this chapter. Such election shall be made by including in the written statement of the employer's policy on drug use provided for in Section 71-7-3(1), and in the job applicant notification provided for in Section 71-7-3(4), a specific statement that the employer's policy is being implemented pursuant to the provisions of this chapter. In the event a private employer makes such an election, the private employer and its employees and job applicants shall have the rights and obligations available to a private employer and its employees and job applicants under this chapter. A private employer who has made such an election may rescind such election by posting a written and dated notice in an appropriate and conspicuous location on the employer's premises, which notice shall state that the employer's employee drug and alcohol testing policy or program will no longer be conducted pursuant to this chapter. As to employees, the rescission of such election shall become effective no earlier than ten (10) working days after the date of the posted notice. As to job applicants, an employer may rescind such election without notice to such job applicant.
(2) Any private employer who does not make such an election or who rescinds an election previously made will be deemed to not be conducting an employee drug and alcohol testing policy or program pursuant to the provisions of this chapter, and in that event the rights and obligations of the employer and its employees and job applicants will not in any way be subject to or affected by the provisions of this chapter, but will instead be governed by applicable principles of contract or common law.
§ 71-7-29
This chapter shall not apply to any employer who is subject to federal law or federal regulations governing the administering of drug and alcohol tests to any of its employees or applicants for employment.
§ 71-7-31
A private employer shall not, by virtue of establishing or implementing a program for drug and alcohol testing in accordance with this chapter or otherwise, be deemed to be an agent or instrument of the State of Mississippi or any body, department, agency, institution or political subdivision thereof.
§ 71-7-33
It shall be unlawful for any public or private employer to require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products during nonworking hours, provided that the individual complies with applicable laws or policies regulating smoking on the premises of the employer during working hours.
Chapter 9 Medical Savings Account Act
§ 71-9-1
This chapter shall be known and may be cited as the “Medical Savings Account Act.”
§ 71-9-3
As used in this chapter:
(a) “Account administrator” means a state chartered bank, savings and loan association, credit union or trust company authorized to act as a fiduciary and under the supervision of the Department of Banking and Consumer Finance or the Department of Savings Associations, as appropriate; a national bank, national lending association or federal savings and loan association or credit union authorized to act as a fiduciary in this state; an insurer licensed and admitted to do business in this state; a third party administrator licensed by the Mississippi Commissioner of Insurance; or an employer, if the employer has a self-insured health plan meeting federal ERISA requirements.
(b) “Account holder” means a resident individual or an employee for whose benefit a medical savings account is established.
(c) “Dependent” means the spouse of an account holder or the child of an account holder if the child is:
(i) Legally entitled to the provision of proper or necessary subsistence, education, medical care, or other care necessary for his or her health, guidance or well-being and not otherwise emancipated, self-supporting, married or a member of the Armed Forces of the United States; or
(ii) Mentally or physically incapacitated to the extent that he or she is not self-sufficient.
(d) “Domicile” means a place where an individual has his or her true, fixed and permanent home and principal establishment, to which, whenever absent, he or she intends to return.
(e) “Eligible medical expense” means an expense paid by a taxpayer for medical care described in Section 213(d) of the Internal Revenue Code.
(f) “Health savings account” means a trust or custodian established in this state pursuant to Section 233 of the Internal Revenue Code of 1986 and rules or guidance thereunder issued by the U.S. Department of the Treasury or Internal Revenue Service.
(g) “High deductible health plan” means a health coverage policy, certificate or contract that provides for payments for covered benefits that exceed the higher deductible.
(h) “Higher deductible” means a deductible of not less than One Thousand Five Hundred Dollars ($1,500.00) but not more than Two Thousand Two Hundred Fifty Dollars ($2,250.00) for individual health coverage, and not less than Three Thousand Dollars ($3,000.00) but not more than Four Thousand Five Hundred Dollars ($4,500.00) for health coverage provided to an individual and his or her dependents, in tax year 1994. Beginning after 1998, such deductible limits thereafter shall be adjusted annually in fifty-dollar increments for increases in the cost of living, as measured by the medical costs component of the Consumer Price Index.
(i) “Medical savings account” means an account established to pay eligible medical expenses of the account holder and his or her dependents and, for purposes of state income tax deductions, includes the term “health savings account” as defined in paragraph (f) of this section.
(j) “Medical savings account program” means a program that includes all of the following:
(i) The purchase by an employer of a qualified higher deductible health plan for the benefit of an employee and his or her dependents or the purchase by a resident individual of a qualified higher deductible health plan for his or her benefit or for the benefit of his or her dependents, or both;
(ii) The payment on behalf of an employee into a medical savings account by his or her employer or payment into a medical savings account by a resident individual on his or her behalf of at least sixty-six and two-thirds percent (66- 2/3 %) of the premium reduction realized by the purchase of a qualified higher deductible health plan; and
(iii) An account administrator to administer the medical savings account and the reimbursement of eligible medical expenses therefrom.
(k) “Qualified higher deductible health plan” means an accident and health insurance policy, certificate or contract that:
(i) Is purchased by an employer for the benefit of an employee or by a resident individual for his or her benefit; and
(ii) Provides for payment of covered expenses that exceed the higher deductible, but shall not exceed the maximum out-of-pocket expenses of Three Thousand Dollars ($3,000.00) for individual coverage and Five Thousand Five Hundred Dollars ($5,500.00) for family coverage.
(l) “Resident individual” means an individual who has a domicile in this state.
§ 71-9-5
(1) Each employer shall be permitted to offer voluntarily the following programs:
(a) Continued coverage under the employer's existing health coverage policy, certificate or contract; or
(b) Participation in a medical savings account program.
(2) An employer that previously did not provide an accident and health insurance policy, certificate or contract for his or her employees may establish a medical savings account program. In this case, the premium reduction referred to in Section 71-9-3(j)(ii) shall be based on the cost of similar coverage with a Five Hundred Dollar ($500.00) deductible.
(3) A resident individual may establish a medical savings account for the benefit of himself or herself and his or her dependents. Contributions to a medical savings account established by a resident individual for a tax year shall not exceed the allowable deductible for a qualified higher deductible health plan.
(4) Except as otherwise provided by law, the principal contributed and the interest earned on a medical savings account shall be excluded from the taxable gross income of the account holder under Section 27-7-15.
§ 71-9-7
(1) Except as otherwise provided in Section 71-9-9 of this chapter, an account administrator shall use the funds held in a medical savings account solely for the purpose of paying eligible medical expenses of the account holder, or his or her dependent, or to pay for an accident and health insurance policy, certificate or contract if the account holder would not otherwise have accident and health insurance coverage.
(2) The account holder may submit documentation for eligible medical expenses paid by the account holder during a tax year to the account administrator, and the account administrator shall reimburse the account holder for the eligible medical expenses out of the medical savings account.
(3) Upon the death of the account holder, the account administrator shall distribute the principal and accumulated interest of the medical savings account to the estate of the account holder, unless the account holder has designated a beneficiary in writing to the account administrator, in which case the accountant administrator shall make such distribution to the designated beneficiary.
§ 71-9-9
Unencumbered funds that have accumulated in a medical savings account that are in excess of the higher deductible may be withdrawn by the account holder for purposes other than paying eligible medical expense or procuring health coverage. Money withdrawn pursuant to this section shall be considered gross income as provided in Section 27-7-17, Mississippi Code of 1972.
Chapter 11 Employment Protection Act
§ 71-11-1
The Legislature finds that when illegal immigrants have been sheltered and harbored in this state and encouraged to reside in this state through the benefit of work without verifying immigration status, these practices impede and obstruct the enforcement of federal immigration law, undermine the security of our borders, and impermissibly restrict the privileges and immunities of the citizens of Mississippi. The Legislature further finds that illegal immigration is encouraged when public agencies within this state provide public benefits without verifying immigration status. The Legislature further finds that the Tenth Amendment to the United States Constitution reserves to the states those powers not delegated to the United States by the Constitution. Therefore, the Legislature declares that it is a compelling public interest of this state to discourage illegal immigration by requiring all agencies within this state to fully cooperate with federal immigration authorities in the enforcement of federal immigration laws. The Legislature also finds that other measures are necessary to ensure the integrity of various governmental programs and services.
§ 71-11-3
(1) This chapter shall be known as the “Mississippi Employment Protection Act.”
(2) The provisions of this section shall be enforced without regard to race, gender, religion, ethnicity or national origin.
(3) For the purpose of this section only, the following words shall have the meanings ascribed herein unless the content clearly states otherwise:
(a) “Employer” is any person or business that is required by federal or state law to issue a United States Internal Revenue Service Form W-2 or Form 1099 to report income paid to employed or contracted personnel in Mississippi.
(b) “Employee” is any person or entity that is hired to perform work within the State of Mississippi and to whom a United States Internal Revenue Service Form W-2 or Form 1099 must be issued.
(c) “Third-party employer” is any person or company that provides workers for another person or company. This includes, but is not limited to, leasing companies and contract employers.
(d) “Status verification system” means the electronic verification of work authorization program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, Public Law 104-208, Division C, Section 403(a); 8 USC Section 1324a, and operated by the United States Department of Homeland Security, known as the E-Verify Program.
(e) “Unauthorized alien” means an alien as defined in Section 1324a(h)(3) of Title 8 of the United States Code.
(f) “Public employer” means every department, agency or instrumentality of the state or a political subdivision of the state.
(g) “Subcontractor” means a subcontractor, contract employee, staffing agency or any contractor regardless of its tier.
(4)(a) Employers in the State of Mississippi shall only hire employees who are legal citizens of the United States of America or are legal aliens. For purposes of this section, a legal alien is an individual who was lawfully present in the United States at the time of employment and for the duration of employment, or was permanently residing in the United States under color of law at the time of employment and for the duration of employment.
(b)(i) Every employer shall register with and utilize the status verification system to verify the federal employment authorization status of all newly hired employees.
(ii) No contractor or subcontractor shall hire any employee unless the contractor or subcontractor registers and participates in the status verification system to verify the work eligibility status of all newly hired employees.
(iii) No contractor or subcontractor who enters into a contract with a public employer shall enter into such a contract or subcontract unless the contractor or subcontractor registers and participates in the status verification system to verify information of all newly hired employees.
(c) The provision of this section shall not apply to any contracts entered into on or before July 1, 2008.
(d) It shall be a discriminatory practice for an employer to discharge an employee working in Mississippi who is a United States citizen or permanent resident alien while retaining an employee who the employing entity knows, or reasonably should have known, is an unauthorized alien hired after July 1, 2008, and who is working in Mississippi in a job category that requires equal skill, effort and responsibility, and which is performed under similar working conditions, as defined by 29 USC, Section 206(d)(1), as the job category held by the discharged employee.
(e) An employing entity which, on the date of the discharge in question, was enrolled in and used the status verification system to verify the employment eligibility of its employees in Mississippi hired after July 1, 2008, shall be exempt from liability, investigation or suit arising from any action under this section.
(f) No cause of action for a violation of this section shall lie under any other Mississippi law but shall arise solely from the provisions of this section.
(5) Any employer that complies with the requirements of this section shall be held harmless by the Mississippi Department of Employment Security, provided the employer is not directly involved in the creation of any false documents, and provided that the employer did not knowingly and willfully accept false documents from the employee.
(6)(a) All third-party employers that conduct business in Mississippi shall register to do business in Mississippi with the Mississippi Department of Employment Security before placing employees into the workforce in Mississippi.
(b) Third-party employers shall provide proof of registration and any participation in the status verification system to any Mississippi employer with whom they do business.
(7)(a) State of Mississippi agencies and political subdivisions, public contractors and public subcontractors and private employers with two hundred fifty (250) or more employees shall meet verification requirements not later than July 1, 2008.
(b) Employers with at least one hundred (100) but less than two hundred fifty (250) employees shall meet verification requirements not later than July 1, 2009.
(c) Employers with at least thirty (30) but less than one hundred (100) employees shall meet verification requirements not later than July 1, 2010.
(d) All employers shall meet verification requirements not later than July 1, 2011.
(e)(i) Any employer violating the provisions of this section shall be subject to the cancellation of any state or public contract, resulting in ineligibility for any state or public contract for up to three (3) years, the loss of any license, permit, certificate or other document granted to the employer by any agency, department or government entity in the State of Mississippi for the right to do business in Mississippi for up to one (1) year, or both.
(ii) The contractor or employer shall be liable for any additional costs incurred by the agencies and institutions of the State of Mississippi, or any of its political subdivisions, because of the cancellation of the contract or the loss of any license or permit to do business in the state.
(iii) Any person or entity penalized under this section shall have the right to appeal to the appropriate entity bringing charges or to the circuit court of competent jurisdiction.
(f) The Department of Employment Security, State Tax Commission, Secretary of State, Department of Human Services and the Attorney General shall have the authority to seek penalties under this section and to bring charges for noncompliance against any employer or employee.
(8)(a) There shall be no liability under this section in the following circumstances:
(i) An employer who hires an employee through a state or federal work program that requires verification of the employee's social security number and provides for verification of the employee's lawful presence in the United States in an employment-authorized immigration status;
(ii) Any candidate for employment referred by the Mississippi Department of Employment Security, if the Mississippi Department of Employment Security has verified the social security number and provides for verification of the candidate's lawful presence in the United States in an employment-authorized immigration status; or
(iii) Individual homeowners who hire workers on their private property for noncommercial purposes, unless required by federal law to do so.
(b)(i) Compliance with the sections of this statute shall not exempt the employer from regulations and requirements related to any federal laws or procedures related to employers.
(ii) This section shall not be construed as an attempt to preempt federal law.
(c)(i) It shall be a felony for any person to accept or perform employment for compensation knowing or in reckless disregard that the person is an unauthorized alien with respect to employment during the period in which the unauthorized employment occurred. Upon conviction, a violator shall be subject to imprisonment in the custody of the Department of Corrections for not less than one (1) year nor more than five (5) years, a fine of not less than One Thousand Dollars ($1,000.00) nor more than Ten Thousand Dollars ($10,000.00), or both.
(ii) For purposes of determining bail for persons who are charged under this section, it shall be a rebuttable presumption that a defendant who has entered and remains in the United States unlawfully is deemed at risk of flight for purposes of bail determination.
Chapter 13 Prohibition Against Employer Intimidation Act
§ 71-13-1
This chapter shall be known and cited as the “Prohibition Against Employer Intimidation Act.”
§ 71-13-3
The State of Mississippi is a right to work state and the state's right to work laws are founded on the basic principle that every individual has an inherent right to choose if they want to join a union or an employee organization, and this right to choose should not impact their employment. The State of Mississippi recognizes the importance and necessity of fostering economic development and job creation. Intimidation and coercion against any business, can make the state an unwelcoming and dangerous place for new business and job growth. Intimidation, extortion, and coercion are illegal and present a substantial risk to public safety and the well-being of the state's citizens, workers and businesses; and certain limited and reasonable restrictions are deemed necessary to protect our citizens from these harms.
§ 71-13-5
(1) No person, organization, corporation, union, agency or other entity thereof shall:
(a) Damage, harm, injure or threaten to injure or coerce a business, or any employee or representative of the business with the intent to unlawfully intimidate the business or its employees from exercising their rights, which are protected by state and federal law, in an effort to obtain something of value for a public or private organization, corporation, union, agency or other entity, including, but not limited to, a neutrality agreement, card check agreement, collective bargaining recognition or other objective of an organized initiative;
(b) Restrict a business, a union, or the owners or employees of a business, from exercising their rights, which are protected under state and federal law, in an effort to obtain something of value for a public or private organization, corporation, union, agency or other entity.
(c) Conspire with another, for the purpose of disrupting lawful commerce in places of business, where such activity constitutes an assault or causes physical injury to any individual, located in or around the place of business.
(2) For purposes of this section, “something of value” includes, but is not limited to, a neutrality agreement, card check agreement, recognition or any other objective that is motivating such activities.
§ 71-13-7
(1) No person, organization, corporation, union, agency or other entity shall intentionally or recklessly damage the business property of another when either of the following applies:
(a) The property is used by its owner or possessor in the owner's or possessor's profession, business, trade or occupation; or
(b) The person damages or otherwise marks the property owner's merchandise.
(2) Any person who organizes, coordinates, controls, supervises, finances, manages, aids or abets any of the activities prohibited by subsection (1) of this section shall be charged and suffer the same penalties as the person, organization, corporation, union, agency or other entity.
§ 71-13-9
Nothing in the provisions of this chapter shall be construed to infringe and impede upon any individual's First Amendment rights.
§ 71-13-11
In any civil action filed under the provisions of this chapter, the prevailing plaintiff shall be entitled to damages upon a showing that the conspiracy constitutes an assault or causes physical injury, as defined by law for such causes of action, to such plaintiff, in addition to any other damages otherwise authorized by law.
Chapter 15 Mississippi Employment Fairness Act
§ 71-15-1
This chapter shall be known and may be cited as the “Mississippi Employment Fairness Act.”
§ 71-15-3
Employers and employees alike benefit from consistent and established standards regulating fair employment practices. There are existing federal and state laws, which seek to protect individuals from discrimination in employment, while also providing appropriate due process to employers without limiting the employer's ability to maintain a secure, safe and productive workplace, including, but not limited to, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Equal Pay Act and the Genetic Information Nondiscrimination Act.
Mississippi is a right-to-work state and is governed by the right-to-work laws. Such laws are premised on the belief of free choice whereby employees have a right to freely decide whether to join, be represented by, or financially support a union or employee organization. A labor neutrality agreement is used as a tool to pressure company ownership and management to agree to union demands before the union approaches or involves affected employees, which is unfair to the employer as well as the employee or potential employee. This state recognizes that these agreements have become increasingly common in recent years. As a result of this increase, the need to regulate the use of such agreements is necessary to ensure that both the employer and employee are treated in the fairest way possible.
§ 71-15-5
For purposes of this chapter, the following words shall have the following meanings, unless the context clearly describes otherwise:
(a) “Employee” means a natural person who performs services for an employer for valuable consideration, and does not include a self-employed independent contractor.
(b) “Employer” means a person, association, or legal or commercial entity receiving services from an employee and, in return, giving compensation of any kind to such employee.
(c) “Discrimination” means when an employer takes an action or makes a distinction adversely affecting an employee or job applicant based on the group, class, or category to which that person belongs.
(d) “Federal labor laws” mean the National Labor Relations Act, compiled in 29 USCS, Section 151 et seq., and the Labor Management Relations Act, compiled in 29 USCS, Section 141 et seq., as amended, presidential executive orders, federal administrative regulations relating to labor and management or employee and employer issues, and the United States Constitution as amended.
(e) “Multiemployer association” means a bargaining unit composed of independent employers who associate together to negotiate jointly with one (1) or more labor organizations representing the employees of the independent employers within the bargaining unit.
(f) “Labor peace agreement” means an arrangement between a union and employer under which one (1) or both entities agree to waive certain rights under federal law with regard to union organizing and related activity.
(g) “Project labor agreement” means a collective bargaining agreement with one (1) or more labor unions that establishes the terms and conditions of employment for a specific construction project, before employees are hired to work on such project.
(h) “State,” for the purposes of this chapter, means the Mississippi Legislature.
§ 71-15-7
(1) The state shall retain the exclusive authority to require an employer or multiemployer association to accept or otherwise agree to any provisions of a labor peace agreement or any provisions that are mandatory or nonmandatory subjects of collective bargaining under federal labor laws, including, but not limited to, any limitations on an employer or multiemployer association's rights to engage in collective bargaining with a labor organization, to lock out employees, or to operate during a work stoppage; however, this subsection shall not invalidate or otherwise restrict the state from requiring the use of project labor agreements to the extent permissible under federal labor laws.
(2) This section shall be interpreted and enforced in a manner that is consistent with the National Labor Relations Act, compiled in 29 USCS, Section 151 et seq.
(3) Any agreement, contract, understanding or practice, written or oral, implied or expressed, between any employer and any labor organization containing requirements in violation of this section is declared to be unlawful, null and void, and of no legal effect.
(4) An employer or employee may seek injunctive relief in the Chancery Court of Hinds County, Mississippi, for violations of the provisions of this section.
§ 71-15-9
(1) The state shall retain the exclusive authority to require an employer or multiemployer association to enter into a project labor agreement.
(2) This section does not prohibit an employer or any other person covered by the National Labor Relations Act compiled in 29 USCS Section 151 from entering into agreements or engaging in any other activity protected by law. This section may not be interpreted to interfere with the labor relations of persons covered by the National Labor Relations Act.
(3) Relief that would interfere with the labor relations of persons covered by the National Labor Relations Act may not be granted under the provisions of this section.
Chapter 17 Mississippi Equal Pay for Equal Work Act
§ 71-17-1
The provisions of this chapter shall be known and may be cited as the “Mississippi Equal Pay for Equal Work Act”.
§ 71-17-3
For the purposes of this chapter, the following words and phrases shall have the meanings as defined in this section unless the context clearly indicates otherwise:
(a) “Employee” means any individual who is employed to work forty (40) or more hours a week and who is employed by an employer, including individuals employed by the state or any of its political subdivisions or instrumentalities of subdivisions.
(b) “Employer” means any person who employs five (5) or more employees.
(c) “Wage” means and includes all compensation paid by an employer or his or her agent for the performance of service by an employee, including the cash value of all compensation paid in any medium other than cash.
(d) “Rate” with reference to wages means the basis of compensation for services by an employee for an employer and includes compensation based on time spent in the performance of such services, on the number of operations accomplished, or on the quality produced or handled.
(e) “Unpaid wages” means the difference between the wages actually paid to an employee and the wages required to be paid to an employee as provided in this chapter.
(f) “Skill” means and shall be measured by factors such as experience, ability, education and training that are required to perform a job.
(g) “Effort” means the amount of physical or mental exertion needed to perform a job.
(h) “Responsibility” means the degree of accountability required to perform the job.
(i) “Working Conditions” means and includes the following two (2) factors:
(i) The physical surroundings of a job including, but not limited to, temperature, fumes and ventilation; and
(ii) The hazards of the job.
§ 71-17-5
(1) No employer may pay an employee a wage at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work on a job, the performance of which requires equal skill, education, effort and responsibility, and which is performed under similar working conditions, except where payment is made pursuant to differential based on:
(a) A seniority system;
(b) A merit system;
(c) A system which measures earnings by quantity or quality of production; or
(d) Any other factor other than sex. “Any other factor other than sex” shall include, but not be limited to, the following factors:
(i) The salary history or continuity of employment history demonstrated by the employee as compared to employees of the opposite sex in the same establishment;
(ii) The extent to which there was competition with other employers for the employee's services as compared to employees of the opposite sex in the same establishment; and
(iii) The extent to which the employee attempted to negotiate for higher wages as compared to employees of the opposite sex in the same establishment.
(2)(a) The provisions of this chapter may be enforced by private action in a civil suit in the circuit court in the county in Mississippi where the cause of action occurred pursuant to the Mississippi Rules of Civil Procedure.
(b) If an employer is found to have violated the provisions of subsection (1) of this section, the employee shall be awarded reasonable attorney's fees, prejudgment interest, back pay and costs of the action.
(3) An employer who is paying a wage differential in violation of this chapter shall not, in order to comply with this chapter, reduce the wage rate of any employee.
(4) No employer may discharge, discriminate or in any way retaliate against any employee by reason of any action taken by the employee to invoke or assist in any manner the enforcement of this chapter.
§ 71-17-7
(1) A civil action brought under this chapter may be commenced no later than two (2) years from the day the employee knew or should have known his or her employer was in violation of this chapter.
(2) If an employee brings a claim under the Equal Pay Act of 1963, a separate action may not be maintained under this chapter. If an employee brings a claim under this chapter, then later initiates a claim under the Equal Pay Act of 1963, the action brought under this chapter shall be dismissed with prejudice. An employee who seeks relief under this chapter must first waive any right to relief under the Equal Pay Act of 1963.
(3)(a) For any action under this chapter, published precedents of the United States Supreme Court, the United States Court of Appeals for the Fifth Circuit and federal district courts embracing the circuit court in which any action under this chapter is pending, deciding cases under the Equal Pay Act of 1963, after which this chapter is patterned, shall be considered mandatory authority and shall be followed by the circuit court in which the action is pending, until there is a contrary ruling interpreting this chapter by the Mississippi Supreme Court or the Mississippi Court of Appeals.
(b) If any section, paragraph, sentence, clause, phrase or any part of this chapter passed is declared to be unconstitutional or void, or if for any reason is declared to be invalid or of no effect, the remaining sections, paragraphs, sentences, clauses, phrases or parts thereof shall be in no manner affected thereby but shall remain in full force and effect.
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