N.D. Admin. Code Title 27 — Job Service North Dakota

Article 27-01 General Administration

Chapter 27-01-01 Organization of Job Service

N.D. Admin. Code 27-01-01-01 Organization of job service North Dakota

1.History. The employment security bureau was organized as a separate state agency in 1965.

It is administered by a full-time salaried executive director who is subject to the supervision and direction of the governor. The name of the bureau was changed to job service North Dakota in 1979.

2.Divisions. There is established within the bureau three coordinate divisions. The unemployment compensation division, the state employment service division, and the administrative services division. Each division is administered by a full-time salaried director selected on a nonpartisan merit basis who is subject to the supervision and direction of the bureau.

a.The unemployment compensation division is responsible for the collection of taxes and payment of benefits as prescribed in North Dakota Century Code title 52.

b.The state employment service division is responsible for the establishment of an employment system under the provisions of the Wagner Peyser Act.

c.The administrative services division is responsible for the financial management, data processing, research and analysis, personnel and training, and administrative services for the bureau.

d.The office of the deputy executive director has line authority for all local office activities operated by the bureau.

3.Inquiries. Inquiries regarding the bureau may be addressed to:

Executive Director Job Service North Dakota 1000 East Divide Bismarck, North Dakota 58505

History

• General Authority: NDCC 28-32-02.1
• Law Implemented: NDCC 28-32-02.1

Article 27-02 Unemployment Insurance Contributions

Chapter 27-02-01 Definitions

N.D. Admin. Code 27-02-01-01 Meaning of terms

Unless the context otherwise requires, terms used in regulations, interpretations, rules, forms, instructions, and other official pronouncements issued by the bureau shall have the following meanings:

1.All terms which are defined in the North Dakota Unemployment Compensation Law shall be construed in the sense in which they are defined.

2."Pay period" means that period of time during which the wages due on any pay day were earned.

3."Wages paid" include both wages actually received by the worker and wages constructively paid. Wages are constructively paid when they are:

a.Credited to the account of or set apart for a worker without any substantial restriction as to the time or manner of payment or condition upon which payment is to be made;

b.Made available so that they may be drawn upon by the worker at any time; and

c.Brought within the worker's own control and disposition, although not then actually reduced to possession.

4."Wages payable" means wages earned, including wages earned and paid as well as wages earned and unpaid.

History

• General Authority: NDCC 52-02-02
• Law Implemented: NDCC 52-01-01(16), 52-01-01(22), 52-06-04, 52-06-06

N.D. Admin. Code 27-02-01-02 Week defined

The term "week" for liability determination purposes shall consist of a period of seven consecutive calendar days commencing 12:01 a.m. Sunday and ending midnight of the following Saturday. It is further prescribed that any portion of the period of seven consecutive days at the beginning or ending of a calendar year shall be declared to constitute a week.

History

• General Authority: NDCC 52-02-02
• Law Implemented: NDCC 52-01-01(11), 52-01-01(13)

Chapter 27-02-02 Records

N.D. Admin. Code 27-02-02-01 General record requirements

Each employing unit having employment performed for it shall maintain records as hereinafter indicated and shall preserve such records (including those required under previous rules relating to records) reasonably protected against damage or loss for a period of not less than five years after the calendar year in which the remuneration to which they relate was paid, or if not paid, was due. Each employing unit having an office or place of business in this state shall maintain records, as hereinafter described, within this state.

1.For each worker, unless the agency has ruled that the worker's services do not constitute employment:

a.Name.

b.Social security account number.

c.State or states in which the employee's services are performed; and if any of such services are performed outside this state, and are not incidental to the service within the state, the employee's base of operations with respect to such services (or if there is no base of operation, then the place from which such services are directed or controlled) and the employee's residence (by state). Where the services are performed in Canada or the base of operations with respect to such services or the residence of the worker is in Canada, it shall be recorded as if Canada were a state.

d.Date on which the employee was hired, rehired, or returned to work after temporary layoff and date separated from work and reason therefor.

e.Remuneration paid for service occurring on or after January 1, 1941, and dates of payment, showing separately:

(1)Cash remuneration, including special payments (such as bonuses, gifts, etc.).

(2)Reasonable cash value of remuneration in any medium other than cash (determined in accordance with rules prescribed by the bureau) including special payments (such as bonuses, gifts, etc.).

(3)Estimated or actual amount of gratuities received from persons other than his employing unit (determined in accordance with rules prescribed by the bureau).

f.Amounts paid the employee as allowances or reimbursement for traveling or other business expenses, date of payment, and the amounts of such expenditures actually incurred and accounted for by the employee.

g.With respect to pay periods in which the employee performs services in both employment and nonsubject work.

(1)Hours spent in employment.

(2)Hours spent in nonsubject work.

2.General requirements:

a.Beginning and ending dates of each pay period.

b.Total amount of remuneration paid in any quarter for employment occurring on or after January 1, 1941.

c.Total amount of wages paid in any quarter with respect to employment occurring on and after January 1, 1941.

History

• General Authority: NDCC 52-02-02
• Law Implemented: NDCC 52-01-02

N.D. Admin. Code 27-02-02-02 Form of records

Records shall be maintained by employing units in such form as to make it possible to determine from an inspection thereof with respect to any worker:

1.Earnings by pay period weeks, if paid on a weekly basis, or, if not so paid, then by calendar weeks or by such other seven consecutive day period as the bureau may prescribe as to any individual or group of individuals.

2.Weeks of less than full-time work.

3.Time lost due to reasons other than lack of work.

4.Calendar days worked.

History

• General Authority: NDCC 52-02-02
• Law Implemented: NDCC 52-01-02

Chapter 27-02-03 Reports

N.D. Admin. Code 27-02-03-01 General report requirement

Each employing unit shall make such reports as the bureau may require, and shall comply with instructions printed upon any report form issued by the bureau pertaining to the preparation and return of such report.

History

• General Authority: NDCC 52-02-02
• Law Implemented: NDCC 52-01-02, 52-04-08, 52-05-04

N.D. Admin. Code 27-02-03-02 Employing unit reports

1.Every individual or organization which becomes an employing unit and for which services are performed in employment shall file a report to determine liability (status report, NDUC-301) within twenty days after such first employment.

2.Any employing unit, not already an employer, which becomes an employer, shall immediately give notice to the bureau of that fact. The notice shall contain the employer's name and address and the business name and address.

3.Any employer who terminates business for any reason whatsoever or transfers or sells all of the employer's organization, trade, or business, or any part thereof, or except in the usual course of business, sells a substantial part of the employer's assets, or changes the trade name of such business or address thereof, shall within twenty days after such termination, transfer, sale, or change of name or address, give written notice to the bureau of that fact. The notice shall contain the employer's account number, name, former address and present address and, in the event of a transfer or sale, the name and address of any new owner, and business name and address.

History

• General Authority: NDCC 52-02-02
• Law Implemented: NDCC 52-01-02, 52-04-08, 52-05-04

Chapter 27-02-04 Posting of Notices

N.D. Admin. Code 27-02-04-01 Posting of notices required

Every employer (including every employing unit which has, with the approval of the bureau, become an employer by election under the provisions of the North Dakota Unemployment Compensation Law) shall post and maintain printed notices to the employer's workers informing them that the employer is liable for contributions under the North Dakota Unemployment Compensation Law.

Such notices shall also include information as to the workers' rights to benefits and instructions as to the procedure for registering for work and for filing claims for benefits. They shall be furnished by the bureau in such numbers as the employer may determine to be necessary and shall be posted and maintained in conspicuous places near the actual locations where the workers' services are performed.

No such notice shall be posted or maintained by any person or employing unit to whom an unemployment compensation account number has not been assigned by the bureau or who has ceased to be an employer.

History

• General Authority: NDCC 52-02-02
• Law Implemented: NDCC 52-06-35

Chapter 27-02-05 Identification of Workers

N.D. Admin. Code 27-02-05-01 Employee social security number required

Each employer shall ascertain the social security account number of each worker performing services for the employer in employment.

N.D. Admin. Code 27-02-05-02 Receipt of application for number required

If a worker does not have an account number, the employer shall request the worker to produce a receipt issued by an office of the social security administration indicating that the worker has filed an application for an account number. The receipt shall be retained by the worker.

N.D. Admin. Code 27-02-05-03 Notification of social security number requirement

If a worker fails to report the worker's correct account number or to produce a receipt issued by an office of the social security administration indicating that the worker had filed an application for an account number, the employer shall inform the worker that regulation 106 of the bureau of internal revenue, United States treasury department, under the Federal Insurance Contributions Act, provides that:

1.Each worker shall report to the worker's employer the worker's social security account number and the worker's name exactly as shown on the account number card issued to the worker by the social security administration.

2.Each worker who has not secured an account number shall file an application for an account number on form ss-5 of the treasury department, bureau of internal revenue. The application shall be filed on or before the seventh day after the date on which the worker first performs employment for wages, except that the application shall be filed on or before the date the worker is separated from the worker's employer if such date precedes the seventh day.

3.If, on the fourteenth day after the date on which the worker first performs employment for wages for the employer, or on the day on which the worker is separated from the worker's employer, whichever is the earlier, the worker does not have an account number, and has not shown the employer a receipt issued by an office of the social security administration indicating that the worker has filed an application for an account number, the worker shall furnish the employer an application on form ss-5, completely filled in and signed by the worker.

If a copy of form ss-5 is not available, the worker shall furnish the employer a written statement signed by the worker, showing the date of the statement, the worker's full name, present address, date and place of birth, father's full name, mother's full name before marriage, worker's sex and color or race, and a statement as to whether the worker has previously filed an application on form ss-5 and, if so, the date and place of such filing.

Furnishing the employer with an executed form ss-5, or statement in lieu thereof, does not relieve the worker of the worker's obligation to make an application on form ss-5 as set forth in subsection 2.

N.D. Admin. Code 27-02-05-04 Information concerning social security numbers

Each employer shall inform the employer's workers, in instances in which the information is pertinent, that:

1.Copies of form ss-5, application for a social security account number, can be secured at any district office of the social security administration, an office at which claims for unemployment compensation may be filed, the local post office, or from any collector of internal revenue and shall be filed with the social security administration district office or the office at which claims for unemployment compensation benefits may be filed nearest the worker's place of employment, or if the worker is not working in the United States, with the social security administration office at Baltimore, Maryland.

2.Any worker who has lost the worker's account number card may secure a duplicate card by applying at the district office of the social security administration nearest the worker's place of employment.

3.Any worker may have the worker's account number changed at any time by applying to a district office of the social security administration and showing good reason for a change. Any worker whose name is changed by marriage or otherwise, or who has stated incorrect information on form ss-5, should report such change or correction to a district office of the social security administration or office at which claims for unemployment compensation benefits may be filed. Copies of form oaan-7003, employee's request for change in records, for making such reports, may be obtained from any district office of the social security administration or any office at which claims for unemployment compensation benefits may be filed.

4.Any worker who has more than one account number shall report all numbers to the district office of the social security administration or office at which claims for unemployment compensation benefits may be filed nearest the worker's place of employment.

N.D. Admin. Code 27-02-05-05 Application by employer for social security number

If a worker fails to comply with the requirements enumerated under section 27-02-05-03, the worker's employer shall execute a form ss-5, application for a social security account number, a statement signed by the employer, setting forth as fully and as clearly as possible the worker's full name, the worker's present or last known address, date and place of birth, father's full name, mother's full name before marriage, and the worker's sex and color or race, and a statement as to whether an application for an account number has previously been filed by the worker and, if so, the date and place of such filing. The employer shall file the executed form ss-5 at the nearest district office of the social security administration and indicate thereon that the employer is to be notified of the social security account number assigned to the employee.

Chapter 27-02-06 Employer Elections to Cover Multistate Workers

N.D. Admin. Code 27-02-06-01 Interstate reciprocal coverage arrangement

This chapter governs the North Dakota bureau in its administrative cooperation with other states subscribing to the interstate reciprocal coverage arrangement, hereinafter referred to as the arrangement.

N.D. Admin. Code 27-02-06-02 Definitions

As used in this chapter, unless the context clearly indicates otherwise:

1."Agency" means any officer, board, commission, or other authority charged with the administration of the unemployment compensation law of a participating jurisdiction.

2."Interested jurisdiction" means any participating jurisdiction to which an election submitted under this chapter is sent for its approval; and "interested agency" means the agency of such jurisdiction.

3."Jurisdiction" means any state of the United States, the District of Columbia, Puerto Rico, Canada, or, with respect to the federal government, the coverage of any federal unemployment compensation law.

4."Participating jurisdiction" means a jurisdiction whose administrative agency has subscribed to the arrangement and whose adherence thereto has not terminated.

5."Services customarily performed by an individual in more than one jurisdiction" means services performed in more than one jurisdiction during a reasonable period, if the nature of the services gives reasonable assurance that they will continue to be performed in more than one jurisdiction or if such services are required or expected to be performed in more than one jurisdiction under the election.

N.D. Admin. Code 27-02-06-03 Submission and approval of coverage elections under the interstate reciprocal coverage arrangements

1.Any employing unit may file an election, on form rc-1, to cover under the law of a single participating jurisdiction all of the services performed for the employing unit by any individual who customarily works for the employing unit in more than one participating jurisdiction.

The election may be filed, with respect to an individual, with any participating jurisdiction in which:

a.Any part of the individual's services are performed;

b.The individual has residence; or

c.The employing unit maintains a place of business to which the individual's services bear a reasonable relation.

2.The agency of the elected jurisdiction (thus selected and determined) shall initially approve or disapprove the election.

If the agency approves the election, it shall forward a copy thereof to the agency of each other participating jurisdiction specified thereon, under whose unemployment compensation law the individual or individuals in question might, in the absence of such election, be covered. Each such interested agency shall approve or disapprove the election, as promptly as practicable, and shall notify the agency of the elected jurisdiction accordingly.

In case its law so requires, any such interested agency may, before taking such action, require from the electing employing unit satisfactory evidence that the affected employees have been notified of, and have acquiesced in, the election.

3.If the agency of the elected jurisdiction, or the agency of any interested jurisdiction, disapproves the election, the disapproving agency shall notify the elected jurisdiction and the electing employing unit of its action and of its reasons therefor.

4.The election shall take effect as to the elected jurisdiction only if approved by its agency and by one or more interested agencies.

An election thus approved shall take effect, as to any interested agency, only if it is approved by such agency.

5.In case any election is approved only in part, or is disapproved by some of such agencies, the electing employing unit may withdraw its election within ten days after being notified of such action.

N.D. Admin. Code 27-02-06-04 Effective period of elections for reciprocal coverage

1.Commencement.

a.An election duly approved under this chapter shall become effective at the beginning of the calendar quarter in which the election was submitted, unless the election, as approved, specifies the beginning of a different calendar quarter.

b.If the electing unit requests an earlier effective date than the beginning of the calendar quarter in which the election is submitted, such earlier date may be approved solely as to those interested jurisdictions in which the employer had no liability to pay contributions for the earlier period in question.

2.Termination.

a.The application of an election to any individual under this chapter shall terminate, if the agency of the elected jurisdiction finds that the nature of the services customarily performed by the individual for the electing unit has changed, so that they are no longer customarily performed in more than one participating jurisdiction. Such termination shall be effective as of the close of the calendar quarter in which notice of such finding is mailed to all parties affected.

b.Except as provided in subdivision a, each election approved hereunder shall remain in effect through the close of the calendar year in which it is submitted, and thereafter until the close of the calendar quarter in which the electing unit gives written notice of its termination to all affected agencies.

c.Whenever an election under this chapter ceases to apply to any individual, under subdivision a or b, the electing unit shall notify the affected individual accordingly.

N.D. Admin. Code 27-02-06-05 Reports and notices by the unit electing reciprocal coverage

1.The electing unit shall promptly notify each individual affected by its approved election, on the form rc-2 supplied by the elected jurisdiction, and shall furnish the elected agency a copy of such notice.

2.Whenever an individual covered by an election under this chapter is separated from the individual's employment, the electing unit shall again notify the individual, forthwith, as to the jurisdiction under whose unemployment compensation law the individual's services have been covered. If at the time of termination the individual is not located in the elected jurisdiction, the electing unit shall notify the individual as to the procedure for filing interstate benefit claims.

3.The electing unit shall immediately report to the elected jurisdiction any change which occurs in the conditions of employment pertinent to its election, such as cases where an individual's services for the employer cease to be customarily performed in more than one participating jurisdiction or where a change in the work assigned to an individual requires the individual to perform services in a new participating jurisdiction.

N.D. Admin. Code 27-02-06-06 Approval of reciprocal coverage elections

The executive director of the bureau hereby delegates to the director of the unemployment compensation division authority to approve or disapprove reciprocal coverage elections in accordance with this chapter.

Chapter 27-02-07 Payment of Contributions

N.D. Admin. Code 27-02-07-01 Contributions start 1941

Beginning January 1, 1941, except as otherwise provided in this chapter, contributions shall be payable for each calendar quarter with respect to wages paid during such calendar quarter for employment occurring on or after January 1, 1941.

History

• Law Implemented: NDCC 52-01-01(9), 52-04-01, 52-04-11, 52-04-18(1), 52-04-19(1),52-04-19.1(1),

N.D. Admin. Code 27-02-07-02 Contribution due date

Except as otherwise provided in this chapter, contributions shall become due on and shall be paid on or before the last day of the month following the close of the calendar quarter in which the wages are paid.

History

• Law Implemented: NDCC 52-01-01(9), 52-04-01, 52-04-11, 52-04-18(1), 52-04-19(1),52-04-19.1(1),

N.D. Admin. Code 27-02-07-03 Amount of first contribution

The first contribution payment of any employing unit which becomes an employer at any time during a calendar year shall, except as otherwise provided in this chapter, become due on, and shall be paid on or before, the last day of the month next following the close of the quarter in which such employing unit becomes an employer; and shall include contributions with respect to all wages paid during such calendar year up to and including the last day of such calendar quarter.

History

• Law Implemented: NDCC 52-01-01(9), 52-04-01, 52-04-11, 52-04-18(1), 52-04-19(1),52-04-19.1(1),

N.D. Admin. Code 27-02-07-04 Amount of first contribution - Electing unit

The first contribution payment of any employing unit which elects to become an employer or to have nonsubject services performed for it deemed employment shall upon written approval of such election by the bureau become due on, and shall be paid, except as otherwise provided by this

regulation, on or before the last day of the month next following the close of the calendar quarter which includes (1) the effective date of such election or (2) the date of approval, whichever is later. The first payment shall include contributions with respect to all wages for services covered by such election paid on and after the effective date and up to and including the last day of such calendar quarter.

History

• Law Implemented: NDCC 52-01-01(9), 52-04-01, 52-04-11, 52-04-18(1), 52-04-19(1),52-04-19.1(1),

N.D. Admin. Code 27-02-07-05 Accrued contributions

Whenever the bureau or its authorized representative has, in writing, advised an employing unit that it has been determined not to be an employer or that services performed for it do not constitute employment, and a legal obligation on the part of such unit to pay contributions is thereafter established, accrued contributions shall become due and interest shall accrue thereon fifteen days after such employing unit is informed of its liability.

History

• Law Implemented: NDCC 52-01-01(9), 52-04-01, 52-04-11, 52-04-18(1), 52-04-19(1),52-04-19.1(1),

N.D. Admin. Code 27-02-07-06 Monthly contributions

The bureau may at its discretion require or permit an employer to pay contributions monthly instead of quarterly. Monthly contributions shall become due on, and shall be paid on or before the last day of the month next following the close of the month in which wages are paid.

History

• Law Implemented: NDCC 52-01-01(9), 52-04-01, 52-04-11, 52-04-18(1), 52-04-19(1),52-04-19.1(1),

N.D. Admin. Code 27-02-07-07 Advance of contribution due date

Whenever the bureau finds with respect to a particular employer that the collection of contributions which have accrued during any completed or incompleted quarterly or monthly period may be jeopardized by delay it may advance the due date of such employer's contribution to such date as it deems advisable.

History

• Law Implemented: NDCC 52-01-01(9), 52-04-01, 52-04-11, 52-04-18(1), 52-04-19(1),52-04-19.1(1),

N.D. Admin. Code 27-02-07-08 Payment of contributions by installments

1.The bureau may at its discretion permit an employer to pay contributions in installments.

Except as provided in subsection 2, any arrangement for payment in installments shall make provisions for the payment of interest on the past due delinquent contribution balances beginning with the last day of the month following the period with respect to which such contributions accrued and ending with the date on which each such installment is paid.

2.An employing unit which becomes an employer after June thirtieth of any calendar year, or one whose applications for elective coverage is approved after that date but effective retroactively, may upon application be authorized to pay, without interest, contributions in installments on wages paid prior to the end of the calendar quarter in which such employing unit became an employer, or in which such employing unit's application for elective coverage is approved. In the event that such employer fails to pay any installment in full when it falls due, the entire unpaid balance shall immediately become due and payable and such balance shall be subject to interest from the date of default to the date of payment.

3.No such permission for the payment of contributions in installments shall preclude subsequent action by the bureau against such employer under the provisions of section 27-02-07-06.

History

• Law Implemented: NDCC 52-01-01(9), 52-04-01, 52-04-11, 52-04-18(1), 52-04-19(1),52-04-19.1(1),

N.D. Admin. Code 27-02-07-09 Holiday due dates

When the regular payment day for any contribution falls on Sunday or a legal holiday, such contribution shall be due and payable on the first regular business day next following.

History

• Law Implemented: NDCC 52-01-01(9), 52-04-01, 52-04-11, 52-04-18(1), 52-04-19(1),52-04-19.1(1),

N.D. Admin. Code 27-02-07-10 Payment by mail

Payment of contributions received through the mail shall be deemed to have been made and received on the date shown by the postmark.

History

• Law Implemented: NDCC 52-01-01(9), 52-04-01, 52-04-11, 52-04-18(1), 52-04-19(1),52-04-19.1(1),

Chapter 27-02-08 Tentative Wage and Contribution Reports

N.D. Admin. Code 27-02-08-01 Application for time extension

1.An employer desiring an extension of time for the filing of wage and contribution reports must make written application for an extension of time to the unemployment compensation division prior to the due date of any such wage and contribution report. The application must include reason for the request.

2.In the discretion of the director of the unemployment compensation division of the bureau, an extension of time not to exceed thirty days from the due date of the return may be granted.

The application shall be approved in writing, and a copy of such written approval shall be attached to a tentative return to be submitted not later than the due date of the quarterly wage and contribution report.

History

• Law Implemented: NDCC 52-01-02, 52-04-01

N.D. Admin. Code 27-02-08-02 Filing of tentative wage and contribution report

1.The employer will tender with such tentative return an estimated amount of the contributions due and payable for the calendar quarter for which such tentative return is filed.

2.The employer will submit within the period of extension an accurate return reflecting the payments of wages to all workers employed during the calendar quarter for which the tentative return was originally filed and will accurately compute the contributions due and payable on the basis of the taxable wage payments actually made during the calendar quarter covered by such tentative return.

History

• Law Implemented: NDCC 52-01-02, 52-04-01

N.D. Admin. Code 27-02-08-03 Overpayments and deficiencies in amount due

1.Credit memoranda will be issued for all overpayments and such overpayments are subject to refund upon application by the employer and may be refunded in the discretion of the North Dakota unemployment compensation division without formal application for refund by the employer.

2.All deficiencies in the amount due for contributions shall be subject to interest as provided for by North Dakota Century Code section 52-04-11 and no employer's account shall be credited for ratemaking purposes, excepting as of date of actual receipt of contributions due and payable.

3.Nothing contained in this chapter shall be construed to give employers the right to use overpayments as advance payments to effect a reduction in experience rating not otherwise contemplated by the North Dakota Unemployment Compensation Act, or to waive any of the requirements of the North Dakota Unemployment Compensation Law.

History

• Law Implemented: NDCC 52-01-02, 52-04-14

Chapter 27-02-09 Computation of Contribution Rate after Transfer

N.D. Admin. Code 27-02-09-01 Application for merger of accounts

An employing unit which is the successor to substantially all of the organization, trade, business, or the assets of a predecessor employing unit shall be supplied with an appropriate application form in order that it may request to be substituted to the position and all the rights of such predecessor with respect to such predecessor's experience rating account, as provided in North Dakota Century Code

section 52-04-08. Such application shall specify the portion of the organization, trade, business, or assets of the predecessor employing unit, which has been transferred to the successor employing unit.

Unless such application is filed with the bureau within sixty days after delivery of the application or if such application is mailed, within sixty days after the date of mailing the application to the acquiring employer, or on or before January thirty-first of the year next following the calendar year in which the transfer of the organization, trade, business, or assets of the predecessor employing unit to the successor took place, whichever date is the earlier, the acquiring employer shall be deemed to have forfeited the acquiring employer's rights to the predecessor's experience.

N.D. Admin. Code 27-02-09-02 Merger of accounts on order of the bureau

When it comes to the attention of the bureau that an acquiring employer is successor to substantially all of the organization, trade, business or assets of a predecessor employing unit and has not made application for transfer, and it is deemed advisable to recompute the rate of contribution of the acquiring employer based on the combined experience of such an acquiring employer and predecessor employing unit in order to establish an equitable contribution rate for the remainder of the rate period, such recomputation shall be made.

N.D. Admin. Code 27-02-09-03 Method of computation for merged accounts

In the event an application for transfer is approved by the bureau, or upon order of the bureau, the contribution rate of the acquiring employer for the period beginning with the date of transfer and ending with the next following effective date of contribution rates allowed under the North Dakota Unemployment Compensation Law shall be:

1.The contribution rate applicable to the transferring employer with respect to the period immediately preceding the date of the transfer provided the acquiring employer was not, prior to the transfer, a subject employer, and only one transferring employer, or only transferring employers having identical rates, are involved; or

2.A newly computed rate, based on the combined experience of the transferring employer and acquiring employer as of the regular computation date for the rate period in which the transfer occurs; or

3.The contribution rate applicable to the acquiring employer immediately preceding the date of the transfer; or

4.The rate of contribution for newly subject employers.

N.D. Admin. Code 27-02-09-04 Contribution rate determination on next regular computation date

On the next regular computation date following the transfer, the employer's rate will be based on the combined computation for the accounts set up as a single merged account.

Chapter 27-02-10 Administrative Hearing upon Application for Review and Redetermination of Rates of Contribution

N.D. Admin. Code 27-02-10-01 Appointment of special deputy

The bureau may in connection with all hearings provided for under the terms of this chapter, appoint a special deputy, who shall be attached to the staff of the unemployment compensation division of the bureau in a full-time capacity and who shall by virtue of the appointment have the power and

authority to do all things hereinafter stated to be done by the bureau by the terms of this chapter. This appointment shall be in writing and shall be in effect until revoked by further instrument in writing by the executive director of the bureau. The deputy shall have full authority to hold hearings, render decisions and findings of fact, and do all other administrative acts which by the terms of this chapter are provided to be done by the bureau. This special deputy shall be a person attached to the unemployment compensation division, and nothing herein shall be construed to provide for the appointment of additional persons to the staff of said division. The appointment shall not preclude the bureau from conducting such hearings or doing any other act herein provided for in connection with any case which the bureau shall order to be transferred from the special deputy.

N.D. Admin. Code 27-02-10-02 Presentation of application for review and redetermination

1.An employer applying for review and redetermination of the employer's rate of contributions shall file with the unemployment compensation division of the bureau an application setting forth:

a.The name, address and official position of the person filing the application.

b.Name, address, and identification number of the employer.

c.Brief statement of the question involved and reasons for the application for review and redetermination of the rate of contribution.

2.An employer who has applied for a review and redetermination of the employer's rate of contributions may withdraw the application by filing with the director of the unemployment compensation division a written notice of withdrawal.

3.The bureau may either grant or deny any application for review and redetermination of an employer's rate of contribution. A copy of the decision of the bureau on any application shall be mailed to the employer at the employer's last known address within twelve days of the filing of the application.

4.If the application for review is granted, the bureau shall proceed to schedule the hearing and shall mail a notice to the employer at the employer's last known address at least seven days before the hearing, specifying the time and place thereon. If the employer or the employer's representative fails to appear at the hearing, the rate of contribution as originally reported will become final unless the employer, within twelve days thereafter appears and shows good cause for the employer's former nonappearance in which latter event the bureau shall reschedule the hearing.

5.Orders for supplying information from this agency to the employer or the employer's representative, if necessary for the proper presentation of the employer's case, shall be issued only upon application therefor. All applications for information in the records of the agency shall show as nearly as possible the information desired.

6.Subpoena to compel the attendance of witnesses and production of records for any hearing on the rate of contributions, unless directed by the bureau or its deputy, shall be issued by the bureau only upon a showing of a necessity thereof by the employer or the employer's representative.

N.D. Admin. Code 27-02-10-03 Hearings on rates of contributions

1.Hearings shall be held at the office of the unemployment compensation division in Bismarck unless, in its discretion, the bureau may determine upon another place within the state.

2.The executive director of the bureau or the special deputy herein referred to shall preside over the hearings. 3.a.Any individual may appear for oneself in any proceeding before the bureau or its deputy.

Any partnership may be represented by any of its members.

b.Any individual may appear by an attorney at law, admitted to practice before the highest court of this state, or the highest court of any state or territory of the United States, or by any other person who is qualified to represent others.

c.The bureau or its deputy, in the deputy's discretion, may refuse to allow any person to represent others in any proceeding before the deputy who the deputy finds is guilty of unethical conduct, or who intentionally and repeatedly fails to observe the provisions of the Unemployment Compensation Act, or the regulations and instructions of the state agency.

4.All hearings shall be conducted informally and in such a manner as to bring out the facts relevant to the determination of the application. All testimony at the hearings shall be by oath or affirmation and shall be recorded but need not be transcribed unless a petition is filed for a judicial review, except the bureau, during the hearings, may indicate a portion of the evidence that should be transcribed to aid the bureau in preparing the findings of facts or decision. The employer may make a written submission of the facts involved and shall be permitted to present arguments submitted by written brief upon the questions of law involved. The bureau may decide the question on the basis of such stipulation and argument, or may in its discretion set the question for hearing and take such further evidence as may be deemed necessary.

5.The bureau shall use its best judgment as to when adjournment of a hearing shall be granted in order to secure all the evidence that is necessary.

N.D. Admin. Code 27-02-10-04 Determination of rate of contribution

1.Within ten days after the conclusion of the hearing, the bureau shall announce its findings of fact and determination which shall be in writing and shall be signed by the executive director or the deputy who presides in such hearing.

2.A copy of the determination shall be mailed by registered mail to the employer at the employer's last known address.

Chapter 27-02-11 Trust Fund Withdrawals [Repealed]

N.D. Admin. Code 27-02-11 Trust Fund Withdrawals [Repealed]

CHAPTER 27-02-11

TRUST FUND WITHDRAWALS [Repealed effective August 1, 1995]

Determined repealed by the office of the Legislative Council pursuant to subsection 3 of North Dakota Century Code section 28-32-03 because the authority for the adoption of the rules was repealed by S.L. 1995, ch. 480, section 9.

Chapter 27-02-12 Administrative Rules

N.D. Admin. Code 27-02-12-01 Cash value of certain remunerations

1.If board, lodging, or any other payment in kind, considered as payment for services performed by a worker, is in addition to or in lieu of (rather than a deduction from) money wages, the bureau shall determine or approve the cash value of such payment in kind, and the employer shall use these cash values in computing contributions due under the Unemployment Compensation Act.

2.Where a cash value for board and lodging furnished a worker is agreed upon in any contract of hire, the amount so agreed upon shall, if more than the rates prescribed herein, be deemed the value of such board and lodging. Until and unless, in a given case a rate for board and lodging is determined by the bureau, board and lodging furnished in addition to money wages shall be deemed to have not less than the following values:

Full board and room, weekly.........................................................................................$20.00 Meals, per week.........................................................................................14.00 Meals, per day.........................................................................................2.00 Meals, per meal..........................................................................................75 Lodging, per week.........................................................................................7.00

History

• General Authority: NDCC 52-02-02
• Law Implemented: NDCC 52-01-01(22), 52-06-06

N.D. Admin. Code 27-02-12-02 Gratuities

If gratuities constitute partial or entire payment for services performed by a worker, the employer shall include as wages the amount of gratuities or tips actually received by each worker or shall make a reasonable valuation of the average remuneration from that source, showing in detail on a statement attached to the employer's first contribution report for 1937 or the employer's first contribution report thereafter, and thereafter as requested, the basis for such valuation. The requirements of the Unemployment Compensation Act and the instructions of the bureau relating to the reporting of wages are not to be construed as requiring or permitting employers to require workers to report to their employers the amount of their tips. The reporting of the exact amount of tips received by workers is to be made only with the voluntary consent of the workers.

History

• General Authority: NDCC 52-02-02
• Law Implemented: NDCC 52-01-01(22), 52-06-06

Chapter 27-02-13 Incremental Bond Procedures

N.D. Admin. Code 27-02-13-01 Incremental bond procedures

1.A project will be subject to the provisions of North Dakota Century Code section 52-04-06.1 if the bureau determines that:

a.The total of the contracts awarded on the project are at least twenty-five million dollars excluding contracts awarded solely for design and engineering;

b.More than one-half of the work will be completed within seven years of the date work begins;

c.The total number of individuals performing services in employment on the project total two hundred fifty or more in the aggregate; and

d.The estimated total benefits attributable to services performed on the project will exceed the estimated contributions to be paid for services performed on the project.

The total amount of benefits will be estimated assuming that half of the workers will receive benefits equal to the maximum weekly benefit amount times the average duration of benefits paid to all claimants during the most recently completed calendar year. The estimate of contributions to be paid will be made by multiplying the average tax rate for the most recently completed calendar year times the estimated amount of taxable wages to be reported by employers on the project. The estimated taxable wages must be determined by multiplying the number of workers projected to be employed on the project times the maximum taxable wage base in effect for the current year.

2.Determinations, with respect to whether a project is subject to the provisions of North Dakota Century Code section 52-04-06.1, must be made in the same manner as provided for in North Dakota Century Code section 52-04-17.

3.The owner of any projects determined to be subject to the provisions of North Dakota Century Code section 52-04-06.1 must notify the bureau in writing within thirty days of the award of any contract to any employing unit for work on the project. Any contractor for such project who, in turn, subcontracts to another must also notify the bureau in writing of such contract award within thirty days of the issuance of the contract.

4.Each employing unit having employees working on any project subject to the provisions of North Dakota Century Code section 52-04-06.1 shall maintain separate records for all employment on such project showing the individuals' names, social security numbers, and wages paid. Such employers must be required to report such employment and wages separate from other employment subject to the North Dakota Unemployment Compensation Law under a separate reporting account established for the project.

5.Each report must also indicate which workers were North Dakota residents at the time of their hire and the date of their hire. Job service North Dakota will notify the employer in writing which workers identified as North Dakota residents do not meet the two thousand dollars earnings test provided for in subsection 4. The employer will then have thirty days to submit proof of North Dakota residence for the workers so identified. Proof of residence must include copies of state income tax returns, drivers' licenses, vehicle registrations, or other public documents and records showing a North Dakota residence and dated more than one year prior to the date of hire. Failure by the employer to identify workers as North Dakota residents or furnishing acceptable proof of residence within the time specified will result in loss of refund credit for wages paid to the workers in question.

6.Refunds of bond payments with regard to subsection 4 of North Dakota Century Code section 52-04-06.1 may be made by the bureau only after the employing unit has submitted a written request for such refund. Such request must show for each worker claimed to be a North Dakota resident at the time of their hire, the worker's name, social security number, and total wages paid for work on the project. The request must also show the total wages paid for all work on the project, the percent of the total wages paid to North Dakota residents, the total amount of the employer's bond payments, and the amount of the refund requested.

Applications for refund must be made within ninety days after completion of the employer's portion of the work on the contract or the refund will not be allowed.

7.If an employer's request for refund is reduced or denied, the employer must be notified promptly in writing of such determination. Such determination will become final unless, within fifteen days from the date of mailing to the employer's last known address, the employer files a request for redetermination. Proceedings on such request must be in the same manner as requests for redeterminations on rates of contributions as provided for in chapter 27-02-10 and North Dakota Century Code section 52-04-10.

History

• History: Effective January 1, 1991.
• General Authority: NDCC 52-02-02
• Law Implemented: NDCC 52-04-06.1

Chapter 27-02-14 Definition of Employment

N.D. Admin. Code 27-02-14-01 Employment defined

1.Subdivision a of subsection 17 of North Dakota Century Code section 52-01-01 contains three separate and independent tests for determining if the service is employment.

2.The first test relates to the test for determining whether the service of an officer of a corporation is employment with respect to service performed for the corporation. That test is found in paragraph 1 of subdivision a of subsection 17 of North Dakota Century Code section

N.D. Admin. Code 52-01-01 The second test relates to the test for determining whether an individual's service is employment with regard to the test provided for in subdivision e of subsection 17 of North Dakota Century Code section 52-01-01. That test is found in paragraph 2 of subdivision a of subsection 17 of North Dakota Century Code section 52-01-01. The third test relates to the test for determining if an individual's service in certain occupational groups is employment if such service is not employment under the test. That test is found in paragraph 3 of subdivision a of subsection 17 of North Dakota Century Code section 52-01-01. If an individual's service is employment under any one of these tests, it is to be considered employment for purposes of this section

3.If the service is employment under one of the tests in subsection 2, the designation or description of the relationship by the parties as anything other than that of employment or of employer and employee is immaterial.

4.Generally, an officer of a corporation is an employee of the corporation and the service performed for the corporation is employment. However, an officer of a corporation who does not perform any services or performs only minor services and who neither receives nor is entitled to receive, directly or indirectly, any remuneration is not an employee of the corporation. A director of a corporation, in the director's capacity as such, is not an employee and such service is not employment.

5.Any service performed for another for wages or under any contract of hire is deemed to be employment unless it is shown that the individual performing the service is an independent contractor as determined by the "common law" test.

a.Generally, an employment relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what must be done but how it must be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if the employer has the right to do so.

The right to discharge is also an important factor indicating that the person possessing that right is an employer. However, the right to terminate a contract before completion to prevent and minimize damages for a potential breach or actual breach of contract does not, by itself, suggest an employment relationship. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services. The fact that the contract must be performed at a specific location, such as a building site, does not, by itself, constitute furnishing a place to work if the nature of the work to be done precludes a separate site or is the customary practice in the industry. In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, the individual is an independent contractor. An individual performing services as an independent contractor is not as to such services an employee. Individuals such as physicians, lawyers, dentists, veterinarians, construction contractors, public stenographers, and auctioneers, engaged in the pursuit of an independent trade, business, or profession, in which they offer their services to the public, are independent contractors and not employees.

b.As an aid to determining whether an individual is an employee under the common law rules, twenty factors or elements have been identified as indicating whether sufficient control is present to establish an employer-employee relationship. These twenty factors have been developed based on an examination of cases and rulings considering whether an individual is an employee. The degree of importance of each factor varies depending on the occupation and the factual context in which the services are performed. These twenty factors are designed only as guides for determining whether an individual is an employee; special scrutiny is required in applying these twenty factors to assure that formalistic aspects of an arrangement designed to achieve a particular status do not obscure the substance of the arrangement; that is, whether the person or persons for whom the services are performed exercise sufficient control over the individual for the individual to be classified as an employee. These twenty factors are described below:

(1)Instructions. A person who is required to comply with other persons' instructions about when, where, and how the person is to work is ordinarily an employee. This control factor is present if the person or persons for whom the services are performed have the right to require compliance with instructions.

(2)Training. Training a person by requiring an experienced employee to work with the person, by corresponding with the person, by requiring the person to attend meetings, or by using other methods, indicates that the person or persons for whom the services are performed want the services performed in a particular method or manner.

(3)Integration. Integration of the person's services into the business operations generally shows that the person is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the persons who perform those services must necessarily be subject to a certain amount of control by the owner of the business.

(4)Services rendered personally. If the services must be rendered personally, presumably the person or persons for whom the services are performed are interested in the methods used to accomplish the work as well as in the results.

(5)Hiring, supervising, and paying assistants. If the person or persons for whom the services are performed hire, supervise, and pay assistants, that factor generally shows control over the persons on the job. However, if one person hires, supervises, and pays the other assistants pursuant to a contract under which the person agrees to provide materials and labor and under which the person is responsible only for the attainment of a result, this factor indicates an independent contractor status.

(6)Continuing relationship. A continuing relationship between the person and the person or persons for whom the services are performed indicates that an employer-employee relationship exists. A continuing relationship may exist where work is performed at frequently recurring although irregular intervals.

(7)Set hours of work. The establishment of set hours of work by the person or persons for whom the services are performed is a factor indicating control.

(8)Full time required. If the person must devote substantially full time to the business of the person or persons for whom the services are performed, such person or persons have control over the amount of time the person spends working and impliedly restrict the person from doing other gainful work. An independent contractor, on the other hand, is free to work when and for whom he or she chooses.

(9)Doing work on the premises of the person or persons for whom the services are performed. If the work is performed on the premises of the person or persons for whom the services are performed, that factor suggests control over the person, especially if the work could be done elsewhere. Work done off the premises of the person or persons receiving the services, such as at the office of the worker, indicates some freedom from control. However, this fact by itself does not mean that the person is not an employee. The importance of this factor depends on the nature of the service involved and the extent to which an employer generally would require that employees perform such services on the employer's premises. Control over the place of work is indicated when the person or persons for whom the services are performed have the right to compel the worker to travel a designated route, to canvass a territory within a certain time, or to work at specific places as required.

(10)Order or sequence set. If a person must perform services in the order or sequence set by the person or persons for whom the services are performed, that factor shows that the person is not free to follow the person's own pattern of work but must follow the established routines and schedules of the person or persons for whom the services are performed. Often, because of the nature of an occupation, the person or persons for whom the services are performed do not set the order of the services or set the order infrequently. It is sufficient to show control, however, if such person or persons retain the right to do so.

(11)Oral or written reports. A requirement that the person submit regular or written reports to the person or persons for whom the services are performed indicates a degree of control. By contract, however, parties can agree that services are to be performed by certain dates and the persons performing those services can be required to report as to the status of the services being performed so that the person for whom the services are being performed can coordinate other contracts that person may have which are required in the successful total completion of a particular project.

(12)Payment by hour, week, month. Payment by the hour, week, or month generally points to an employer-employee relationship, provided that this method of payment is not just a convenient way of paying a lump sum agreed upon as the cost of a job.

Payment made by the job or on a straight commission generally indicates that the worker is an independent contractor.

(13)Payment of business or traveling expenses, or both. If the person or persons for whom the services are performed ordinarily pay the person's business or traveling expenses, or both, the person is ordinarily an employee. An employer, to be able to control expenses, generally retains the right to regulate and direct the person's business activities.

(14)Furnishing of tools and materials. The fact that the person or persons for whom the services are performed furnish significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship.

(15)Significant investment. If the person invests in facilities that are used by the person in performing services and are not typically maintained by employees (such as the maintenance of an office rented at fair value from an unrelated party), that factor tends to indicate that the person is an independent contractor. On the other hand, lack of investment in facilities indicates dependence on the person or persons for whom the services are performed for such facilities and, accordingly, the existence of an employer-employee relationship.

(16)Realization of profit or loss. A person who can realize a profit or suffer a loss as a result of the person's services (in addition to the profit or loss ordinarily realized by employees) is generally an independent contractor, but the person who cannot is an employee. For example, if the person is subject to a real risk of economic loss due to significant investments or a bona fide liability for expenses, such as salary payments to unrelated employees, that factor indicates that the person is an independent contractor. The risk that a person will not receive payment for his or her services, however, is common to both independent contractors and employees and thus does not constitute a sufficient economic risk to support treatment as an independent contractor.

(17)Working for more than one firm at a time. If a person performs services under multiple contracts for unrelated persons or firms at the same time, that factor generally indicates that the person is an independent contractor. However, a person who performs services for more than one person may be an employee for each of the persons, especially where such persons are part of the same service arrangement.

(18)Making service available to general public. The fact that a person makes his or her services available to the general public on a regular and consistent basis indicates an independent contractor relationship.

(19)Right to discharge. The right to discharge a person is a factor indicating that the person is an employee and the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes the person to obey the employer's instructions. An independent contractor, on the other hand, cannot be fired so long as the independent contractor produces a result that meets the contract specifications.

(20)Right to terminate. If the person has the right to end his or her relationship with the person for whom the services are performed at any time he or she wishes without incurring liability, that factor indicates an employer-employee relationship. A contract can be terminated by the mutual agreement of the parties before its completion or by one of the parties to the contract before its completion to prevent a further breach of the contract or to minimize damages. This situation indicates an independent contractor relationship.

6.In addition to service which is employment under paragraphs 1 and 2 of subdivision a of subsection 17 of North Dakota Century Code section 52-01-01, other service is employment if it is performed under certain circumstances in the following occupational groups:

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, for his principal.

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, his principal (except for sideline sales activities on behalf of some other person) of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments for merchandise for resale or supplies for use in their business operations.

The fact that the service falls within one of the enumerated occupational groups, however, does not make such service employment under this subsection unless the contract of service contemplates that substantially all of the services are to be performed personally by such individual; 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 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.

OBJECTION

THE LEGISLATIVE COUNCIL'S COMMITTEE ON ADMINISTRATIVE RULES OBJECTS TO NORTH

DAKOTA ADMINISTRATIVE CODE SECTION 27-02-14-01 RELATING TO THE INTERPRETATION OF

THE ABC TEST WHICH DEALS WITH EXEMPTING SERVICES BY INDEPENDENT CONTRACTORS

FROM UNEMPLOYMENT COMPENSATION TAXATION.

The committee objects to this rule because:

1.Prior to the 1991 Legislative Session North Dakota Century Code Section 52-01-01(17)(e) provided for the use of the ABC test to determine if an independent contractor was exempt for unemployment compensation purposes.

2.House Bill No. 1378, adopted by the 1991 Legislative Assembly and effective July 17, 1991, replaced the ABC test with the common law test for determining independent contractor status.

3.A representative of Job Service North Dakota testifying before the committee said the agency is in the process of revising North Dakota Administrative Code Section 27-02-14-01 to incorporate the new test. He said, however, Job Service North Dakota would apply the old rule to service performed prior to the effective date of the legislation and the new rule to service performed after the effective date.

4.Adoption of House Bill No. 1378 clearly indicates the Legislative Assembly intends that the common law test, not the ABC test, be used to determine independent contractor status for unemployment compensation purposes and that it is unfair and contrary to legislative intent for Job Service North Dakota to apply the ABC test to cases in which the service was provided prior to the effective date of the legislation.

Section 28-32-03.3 provides that after the filing of a committee objection, the burden of persuasion is upon the agency in any action for judicial review or for enforcement of the rule to establish that the whole or portion thereof objected to is within the procedural and substantive authority delegated to the agency. If the agency fails to meet its burden of persuasion, the court shall declare the whole or portion of the rule objected to invalid and judgment shall be rendered against the agency for court costs.

History

• History: Effective January 1, 1991; amended effective May 1, 1992.
• General Authority: NDCC 52-02-02
• Law Implemented: NDCC 52-01-01(17)
• History: Effective August 9, 1991.
• General Authority: NDCC 28-32-03.3

Chapter 27-02-15 Employer Liability Determination Proceedings and Appeals

N.D. Admin. Code 27-02-15-01 Employer liability determination proceedings and appeals

1.The director of the job insurance division or the director's designee may, after a notice and opportunity for hearing, make findings of fact and, on the basis thereof, determine whether an individual or organization is an employing unit, whether the service performed for an employing unit is employment, and whether an employing unit is an employer.

2.An interested party to a determination must be notified in writing of the division's intent to make such a determination. The parties shall have fifteen days from the date of the mailing of such notice to request a hearing prior to such determination. If no hearing is requested, the division may make a determination on the basis of reasonably available information.

3.If a hearing is requested, it must be conducted in the same manner as hearings on claims for benefits as provided for in chapter 27-03-06 except when North Dakota Century Code section 52-04-17 or the subject matter may otherwise require.

4.The director of the job insurance division or the director's designee shall promptly set forth in writing the division's findings of fact, the determination, and the reasons for such determination. Copies of such findings of fact and determination must be mailed to all interested parties and are final unless an appeal to the bureau is filed within fifteen days of the date of mailing.

History

• History: Effective January 1, 1991.
• General Authority: NDCC 52-02-02
• Law Implemented: NDCC 52-04-17

Article 27-03 Unemployment Compensation Benefits

Chapter 27-03-01 Definition of Benefit Terms

N.D. Admin. Code 27-03-01-01 Definitions

Benefit terms used in regulations, interpretations, rules, forms, instructions, and other official pronouncements issued by the bureau, shall have the following meanings:

1."Additional claim" is a notification filed at the beginning of a second or subsequent series of claims within a benefit year when reemployment and subsequent separation have occurred since the last claim was filed.

2."Claimant" is an individual who has requested determination of insured status in connection with a claim for benefits.

3."Continued claim" is an application for waiting period credit or benefit payment and certifies to the completion of a week for which waiting period credit or benefits are claimed.

4."Full-time work" means the number of hours or days per week currently established by schedule, custom, or otherwise, as constituting a week of full-time work for the kind of service an individual performs for an employing unit.

5."Insured status" is a claimant's status when it has been determined by the division that the claimant has earned qualifying wages in accordance with North Dakota Century Code section 52-06-04.

6."New claim" is an application for determination of insured status, benefit amount, and duration.

7."Part totally unemployed worker" is an individual who during any week is not employed full time or during which week the individual's earnings from casual employment or odd jobs are less than the individual's weekly benefit amount.

8."Partially unemployed worker" is one who during a particular week:

a.Earned less than his weekly benefit amount;

b.Was employed by a regular employing unit;

c.Worked less than the normal customary full-time hours for such regular employing unit because of a lack of full-time work; and

d.Has a reasonable expectancy of obtaining full-time work from such employing unit.

9."Reopened claim" is a notification following a break in the claim series due to illness, disqualification, unavailability, or failure to report for any reason other than reemployment.

10."Totally unemployed worker" is an individual who with respect to any week performs no services and with respect to which no wages are payable to the individual for services performed during such week.

11."Valid claim" means a claim filed by an individual who has registered for work and who has earned wage credits during the individual's base period sufficient to entitle the individual to benefits under North Dakota Century Code section 52-06-04.

12."Week" means the calendar week of seven consecutive calendar days, beginning at 12:01 a.m. Sunday and ending twelve midnight the following Saturday, except that for the purposes of payment of benefits to partially unemployed workers, whose wages are paid on a weekly

basis, the term week means the pay period week of such worker.

History

• General Authority: NDCC 52-02-02
• Law Implemented: NDCC 52-01-01(21), 52-01-01(23), 52-06-01, 52-06-04, 52-06-06

Chapter 27-03-02 Separation Information

N.D. Admin. Code 27-03-02-01 Separation information required from employers involving possible disqualification or ineligibility

1.Separation information from employer. When a claimant has been determined to have insured status, the division shall promptly notify the worker's last employer on form nduc 211(a), notice of valid claim for unemployment insurance. In the event the separating employer has reason to believe the worker should be disqualified or is ineligible for benefits because of the circumstances surrounding the worker's separation from work, the employer shall so notify the division by completing form nduc 211(a), or its equivalent, setting forth in detail the reasons for the employer's protest.

2.Failure of employer to file separation or eligibility information. If reply on form nduc 211(a), or an equivalent, is not mailed or delivered to the division within ten days after the date appearing on the notice, the determination of the division shall be final.

History

• History: Amended effective July 1, 1989.

N.D. Admin. Code 27-03-02-02 Mass separations

1.Definition of mass separation. "Mass separation" as used in this chapter means the layoff from work of twenty-five or more workers in a single establishment (either permanently or for an indefinite period or for an expected duration of seven days or more) at or about the same time and for the same reason.

2.Filing of notice prior to mass separation. When the employer has advance knowledge of an expected mass separation, the employer shall file a notice thereof with the public employment service office nearest the worker's place of employment, setting forth the reasons for such mass separation, together with a list of the names and social security account numbers of the workers affected. Such notice shall be filed forty-eight hours prior to the commencement of the mass separation.

3.Filing of notice after mass separation. When the employer has no advance knowledge of a mass separation at the commencement thereof, the employer shall within forty-eight hours after the commencement of the mass separation notify the public employment service office nearest the worker's place of employment of the mass separation and the reasons therefor.

Such notification shall include a list of the names and social security account numbers of the workers affected.

4.Filing of mass separation list. The list containing the names and social security account numbers of the workers affected and the employer's name and address as required by this

chapter, shall be filed within the periods of time shown in this chapter except that the time may be extended within the discretion of the division for good cause shown.

N.D. Admin. Code 27-03-02-03 Notice of total unemployment due to strike, lockout, or other labor dispute

1.Notice to the division of labor dispute. In cases of total unemployment due to strike, lockout, or other labor dispute, the employer shall file with the division, in lieu of a mass separation notice, a notice setting forth the existence of such dispute and the approximate number of workers affected.

2.Notice upon request of the division. Upon request, an employer shall furnish to the division the names of the workers ordinarily attached to the department or establishment where unemployment caused by a strike, lockout, or other labor dispute and such other information as is requested by the division.

N.D. Admin. Code 27-03-02-04 Information to workers

Whenever a worker is separated from the worker's employment (permanently or for an indefinite period or for an expected duration of seven or more days) the employer shall instruct such worker to report promptly, either in person or by mail, to the public employment service office most convenient to the worker, or in person to an itinerant point of such office on the first day that such itinerant office is open.

History

• Law Implemented: NDCC 52-06-10, 52-06-12, 52-06-35

Chapter 27-03-03 Claims for Partial Unemployment Benefits

N.D. Admin. Code 27-03-03-01 Employer responsibility in the initiation of a first claim for partial benefits in a benefit year

1.Within one week after the termination of the pay period containing a week in which an employer has furnished any worker in the employer's employ less than four full days of work due to lack of work, or the time or dollar earnings equivalent thereof, or, on the customary pay day for the pay period containing the week of partial unemployment, such employer shall give each such worker a copy of form nduc-222, continued claim for partial unemployment benefits, setting forth the information required of the employer thereby.

The worker shall complete form nduc-222 and present or mail it to the nearest local office of the public employment service, or, if the worker completes and returns such form to the worker's employer, the employer shall promptly mail or otherwise transmit such form to the local office of the public employment service nearest the worker's residence.

2.Upon receipt of form nduc-222, continued claim for partial unemployment benefits, the division shall promptly notify the worker named thereon of the worker's potential rights to partial benefits and shall notify the employer of such worker's partial earnings limit and benefit year ending date. Upon receipt thereof, the employer shall record such partial earnings limit and benefit year ending date upon the employer's payroll records. No form or notice as herein described shall be required with respect to any worker whose earnings for the week involved were more than the worker's weekly benefit amount.

N.D. Admin. Code 27-03-03-02 Employer to furnish evidence of partial unemployment

1.After an employer has been notified of the weekly benefit amount and current benefit year ending date of any worker in the employer's employ, such employer, until the benefit year expiration date shown on the notice, or until otherwise notified, shall within one week after the termination of a pay period containing the week of partial unemployment furnish such partially unemployed worker a copy of any of the following:

a.Form nduc-222, continued claim for partial unemployment benefits, setting forth the information required thereby, including the worker's name and social security account number, the week ending date of such week, the wages earned during the week and the proper certification as to having worked less than the worker's normal customary full-time hours because of a lack of work in such week.

b.Written evidence concerning the worker's partial unemployment by means of a pay envelope, pay check stub, or copy thereof, or other suitable medium approved by the division. The information contained in such medium shall be in ink or typewritten and shall show:

(1)The name and address of the employer.

(2)The name and social security account number of the worker.

(3)The week ending date of such week.

(4)The amount of wages earned in such week.

(5)The following certification (individual or rubber stamped):

I certify that the above amount represents reduced earnings in the week of less than full-time work because of lack of work.

(6)A signature (actual or facsimile) by the employer to the above certification, or other positive identification of the authority supplying the evidence.

2.If, after reasonable effort by the division to obtain verification as described in this section, the employer fails to comply with the verification requirements, such failure shall not in itself result in a denial of benefits or undue delay in payment of benefits to the claimants affected.

N.D. Admin. Code 27-03-03-03 Filing of claims for partial unemployment

1.A claim for benefits for partial unemployment filed by an individual in person at any local office of the public employment service, or at an itinerant point thereof, on form nduc-222, continued claim for partial unemployment benefits, or on form nduc-211, initial claim, shall constitute such individual's notice of partial unemployment and claim for benefits or waiting period credit with respect to the week of partial unemployment covered by the claim. Such claim shall not be valid if filed twenty-nine or more days after the individual has been furnished information by the individual's employer as to the individual's earnings as provided in section 27-03-03-02.

2.A claim for benefits for any individual on form nduc-222, continued claim for partial unemployment benefits, mailed by the individual, or the individual's employer in the individual's behalf, to a local office of the public employment service shall constitute such individual's notice of partial unemployment and claim for benefits or waiting period credit with respect to the week of partial unemployment covered by the claim; provided, that such form is executed by such individual and returned to the individual's employer or forwarded by such individual to a local office of the public employment service within one week after its delivery to the individual.

N.D. Admin. Code 27-03-03-04 Extended period for filing of claims for good cause

Notwithstanding the provisions of section 27-03-03-03, if the division finds that the failure of any individual to register and file a claim for partial unemployment benefits within the time set forth was due to failure on the part of the employer to comply with any of the provisions of this chapter, or to coercion or intimidation exercised by the employer to prevent the prompt filing of such claims, or to failure by the division to discharge its responsibilities properly in connection with such partial unemployment, the division shall extend the period during which such claim may be filed to a date which shall be not less than one week after the individual has received appropriate notice of the individual's potential rights to benefits and the individual's earnings during the period of such partial unemployment, provided, however, that such claim shall not be valid if filed thirteen weeks subsequent to the end of the benefit year (actual or potential) during which such week of partial unemployment occurs.

N.D. Admin. Code 27-03-03-05 Employer's record in connection with partial unemployment

Employer's payroll records may be kept in any manner best suited to their convenience but, in addition to the requirements set forth in chapter 27-02-02, such records shall be kept in such form that it would be possible from an inspection thereof to determine:

1.Wages earned by weeks.

2.Whether any week of partial unemployment claimed by an individual is in fact a week of less than full-time work.

3.Time lost due to unavailability for work by each worker who may be eligible for partial benefits.

Chapter 27-03-04 Claims for Benefits for Intrastate Workers

N.D. Admin. Code 27-03-04-01 Initiation of a claim for benefits

1.New claims filed in person. A new claim for benefits filed in person shall be initiated with a representative of the bureau at any bureau office or with an itinerant representative of the bureau. Such claim shall be made on the initial claim form, setting forth that the worker has registered for work and requests determination of insured status and such other information as is required by the form.

The effective date of a new claim filed in person, except those made by partially unemployed workers, shall be as of the first day of the calendar week in which the worker registers for work and makes the worker's claim for benefits. If an individual normally served by an itinerant service office becomes unemployed during a week in which itinerant service is not scheduled, the individual's claim may be backdated to the first day of the calendar week in which the individual became unemployed if the individual appears on the next regularly scheduled itinerant service date to register for work and file the individual's claim for benefits.

2.New claims filed by mail. The bureau or its representative may permit a worker living in an isolated area to file by mail on form nduc-233, application for unemployment compensation benefits, which form shall be mailed to the worker upon receipt of the worker's communication.

If such individual is determined to have insured status, the individual shall then be required to appear in person at the individual's nearest local office of the public employment service as directed, or at an itinerant point of such office on the first day that such itinerant point is open subsequent to the individual's receipt of the determination, to complete the individual's registration for work and to provide such other information as may be required.

The effective date of a new claim for benefits filed by mail shall be the first day of the calendar week in which the individual so claiming mailed the individual's written application to the bureau or its representative. The postmark date appearing on the envelope containing the original request shall establish the calendar week in which the new claim is effective.

N.D. Admin. Code 27-03-04-02 Continuing a claim for benefits

1.Continued claims filed in person. Continued claims filed in person, except those filed by partially unemployed workers, shall be made on form nduc-217, continued claim, setting forth that for the week entered on the continued claim form the claimant:

a.Claims benefits.

b.Was able to work, available for work, actively seeking work, and registered for work.

c.Had no work and earnings except as entered on the form.

d.Such other information as is required thereby.

Continued claim, form nduc-217 shall renew the worker's registration for work and continue the worker's claim for benefits.

2.Continued claims filed by mail. Continued claims filed by mail, except those made by partially unemployed workers, shall be made on form nduc-217, continued claim, setting forth that for the week entered on the claim form the claimant:

a.Claims benefit.

b.Was able to work, available for work, actively seeking work, and registered for work.

c.Had no work and earnings except as entered on the form.

d.Such other information as is required thereby.

Form nduc-217 shall renew the worker's registration for work and continue the worker's claim for benefits. Form nduc-217, continued claim, shall be provided to the worker for each week of unemployment subsequent to the effective date of the worker's claim, however, no such claims may be authorized for waiting period credit or payment by the bureau until the worker has appeared in person at the local office of the bureau or at an itinerant point, when so directed, to complete the worker's registration for work and otherwise establish the worker's eligibility for benefits.

3.Frequency of filing continued claims for benefits. A claimant, except a partially unemployed worker, shall submit a continued claim, form nduc-217 in person or by mail to the local office of the bureau or to the central office of the bureau. If mailed, the postmark date appearing on the envelope shall constitute the date on which the continued claim is filed.

4.Reporting. A claimant shall report in person as directed by the bureau or its representatives.

Failure to report shall result in ineligibility for benefits until such time as the claimant does report as directed.

5.Failure to report - Late filing of continued claims. If a claimant, except a partially unemployed worker, fails to renew the claimant's registration for work and continue the claimant's claim for benefits for a week of unemployment at the time specified by the bureau or its representative, the claimant's claim shall be denied; however, if such claimant is otherwise eligible and has shown good cause for having failed to file the claimant's continued claim at the specified time, the bureau shall accept a continued claim for benefits for such week if such claim is made on or prior to the claimant's next regularly established date for filing a continued claim. Furthermore, the bureau may authorize the acceptance of continued claims filed after the expiration of the grace period hereby provided for late filing of claims if it can be shown that the late filing of claims was due to a suspension of normal communication and transportation facilities, or due to no fault on the part of the claimant.

N.D. Admin. Code 27-03-04-03 Withdrawal of mail claim privilege

The bureau or its representative reserves the right to withdraw the mail claim privilege granted to claimants if circumstances warrant such action.

N.D. Admin. Code 27-03-04-04 Reporting by mail after reemployment

If a worker, except a partially unemployed worker, becomes employed in a week or immediately following a week for which the worker may be eligible for benefits and such employment prevents the worker from filing a continued claim, in accordance with regularly established continued claim filing procedure, the worker may claim such benefits by mailing to the office at which the worker registered for work and made the worker's claim for benefits, a report of such employment and all earnings received in such week, in the form of a signed statement which shall constitute the worker's claim for benefits for such week.

N.D. Admin. Code 27-03-04-05 Permission to report at local office other than where claim filed

The bureau, for reasons found to constitute good cause for an individual's inability to report at the bureau office or itinerant service office at which the individual filed the individual's claim for benefits and registered for work, may permit such individual to report to any other bureau office or itinerant service office, utilized by the bureau.

N.D. Admin. Code 27-03-04-06 Reinstating a claim for benefits - Additional or reopened

1.Application for reinstatement. A claimant, except a partially unemployed worker, who has not filed continued claim for two or more regularly established filing dates, shall apply for reinstatement in accordance with the provisions set forth in section 27-03-04-01.

2.Reinstatement after employment. If a worker has not filed continued claims for benefits for two or more regularly established filing dates and has been employed since last filing a claim for benefits, an additional claim shall be completed on the additional or reopened claim form, and separation information from the last employer shall be obtained.

3.Reinstatement without intervening employment. If a worker has not filed continued claims for two or more regularly established filing dates but has had no employment since last filing a claim for benefits, a reopened claim shall be filed on the additional or reopened claim form giving the reason for the interruption in the claims series.

N.D. Admin. Code 27-03-04-07 Responsibility of claimant to furnish information

A claimant shall provide such information in connection with the claimant's claim for benefits as the bureau or its representative deems necessary for the proper administration of the law. If a claimant fails to submit information as requested by the bureau or its representative, within one week of the date on which such information is requested, a determination will be made on the basis of information available to the bureau.

N.D. Admin. Code 27-03-04-08 Claimant reporting requirement - Periodic eligibility interviews

A claimant who fails, without good cause, to report to a job service office as directed is not entitled to benefits for the week in which such failure occurs and for every subsequent week until such time as the claimant does report as directed. A claimant may be directed to report to a job service office for the

purpose of participating in periodic eligibility interviews. Job service shall establish a reasonable frequency of periodic eligibility interviews giving consideration to the claimant's potential for being recalled to work by the claimant's former employer and the claimant's prospects for obtaining work.

History

• History: Effective December 1, 1988.
• Law Implemented: NDCC 52-06-01(2)

Chapter 27-03-05 Payment of Benefits to Interstate Claimants

N.D. Admin. Code 27-03-05-01 Application of chapter

This chapter governs the North Dakota unemployment compensation division in its administrative cooperation with other states adopting a similar regulation for the payment of benefits to interstate claimants.

N.D. Admin. Code 27-03-05-02 Definitions

As used in this chapter, unless the context clearly requires otherwise:

1."Agent state" means any state in which an individual files a claim for benefits from another state.

2."Benefits" means the compensation payable to an individual, with respect to the individual's unemployment, under the unemployment insurance law of any state.

3."Interstate benefit payment plan" means the plan approved by the interstate conference of employment security agencies under which benefits shall be payable to unemployed individuals absent from the state or states in which benefit credits have been accumulated.

4."Interstate claimant" means an individual who claims benefits under the unemployment insurance law of one or more liable states through the facilities of an agent state. The term shall not include any individual who customarily commutes from a residence in an agent state to work in a liable state unless the North Dakota unemployment compensation division finds that this exclusion would create undue hardship on such claimants in specified areas.

5."Liable state" means any state against which an individual files, through another state, a claim for benefits.

6."State" includes, in addition to the states of the United States of America, Puerto Rico, Virgin Islands, and the District of Columbia.

7."Week of unemployment" includes any week of unemployment as defined in the law of the liable state from which benefits with respect to such week are claimed.

N.D. Admin. Code 27-03-05-03 Registration for work

Each interstate claimant shall be registered for work, through any public employment office in the agent state when and as required by law, regulations, and procedures of the agent state. Such registration shall be accepted as meeting the registration requirements of the liable state. Each agent state shall duly report, to the liable state in question, whether each interstate claimant meets the registration requirements of the agent state.

N.D. Admin. Code 27-03-05-04 Benefit rights of interstate claimants

1.If a claimant files a claim against any state, and it is determined by such state that the claimant has available benefit credits in such state, then claims shall be filed only against such state as long as benefit credits are available in that state. Thereafter, the claimant may file claims against any other state in which there are available benefit credits.

For the purposes of this chapter, benefit credits shall be deemed to be unavailable whenever benefits have been exhausted, terminated, or postponed for an indefinite period or for the entire period in which benefits would otherwise be payable, or whenever benefits are affected by the application of a seasonal restriction.

2.The benefit rights of interstate claimants established by this chapter shall apply only with respect to new claims (notices of unemployment) filed on or after July 5, 1953.

N.D. Admin. Code 27-03-05-05 Claims for benefits

1.Claims for benefits or waiting period shall be filed by interstate claimants on uniform interstate claim forms and in accordance with uniform procedures developed pursuant to the interstate benefit payment plan. Claims shall be filed in accordance with the type of week in use in the agent state. Any adjustments required to fit the type of week used by the liable state shall be made by the liable state on the basis of consecutive claims filed.

2.Claims shall be filed in accordance with agent state regulations for intrastate claims in local employment offices, or at an itinerant point, or by mail.

a.With respect to claims for weeks of unemployment in which individual was not working for the individual's regular employer, the liable state shall, under circumstances which it considers good cause, accept a continued claim filed up to one week, or one reporting period, late. If a claimant files more than one reporting period late, an initial claim must be used to begin a claim series and no continued claim for a past period shall be accepted.

b.With respect to weeks of unemployment during which an individual is attached to the individual's regular employer, the liable state shall accept any claim which is filed within the time limit applicable to such claims under the law of the agent state.

N.D. Admin. Code 27-03-05-06 Determination of claims

The agent state shall, in connection with each claim filed by an interstate claimant, ascertain and report to the liable state in question such facts relating to the claimant's availability for work and eligibility for benefits as are readily determinable in and by the agent state. The agent state's responsibility and authority in connection with the determination of interstate claims shall be limited to investigation and reporting of relevant facts. The agent state shall not refuse to take an interstate claim.

N.D. Admin. Code 27-03-05-07 Appellate procedure

1.The agent state shall afford all reasonable cooperation in the taking of evidence and the holding of hearings in connection with appealed interstate benefit claims.

2.With respect to the time limits imposed by the law of a liable state upon the filing of an appeal in connection with a disputed benefit claim, an appeal made by an interstate claimant shall be deemed to have been made and communicated to the liable state on the date when it is received by any qualified officer of the agent state.

N.D. Admin. Code 27-03-05-08 Extension of interstate benefit payments to include claims taken in and for Canada

This chapter shall apply in all its provisions to claims taken in and for Canada.

Chapter 27-03-06 First Stage Appeals

N.D. Admin. Code 27-03-06-01 Filing a first stage appeal

Any interested party to a determination on a claim for benefits may file an appeal within twelve days after the determination was mailed to the party or twelve days after the determination was otherwise delivered to the party. The appeal shall be in writing, shall set forth a statement of the grounds for the appeal, and must be filed with the local office of the state employment service or at the office of the unemployment compensation division.

History

• Law Implemented: NDCC 52-06-10, 52-06-13, 52-07.1-04

N.D. Admin. Code 27-03-06-02 Notice of hearing

Appeals shall be heard at the earliest possible date. All interested parties shall be given at least seven days notice of the hearing stating the time and place of hearing and the issues involved.

History

• Law Implemented: NDCC 52-06-10, 52-06-13, 52-07.1-04

N.D. Admin. Code 27-03-06-03 Hearing of the appeal

1.All hearings shall be conducted informally and in such manner as to determine the substantial rights of the parties. All issues relevant to the appeal shall be considered and passed upon.

The claimant and any other interested party may present such evidence as may be pertinent.

2.Where a party is present in person, the referee shall examine such party, and the party's witnesses, if any. At any hearing of an appeal, the referee, with or without notice to the parties, may take such additional evidence as the referee deems necessary. The parties and their representatives may examine or cross examine witnesses, inspect documents, and explain or rebut any evidence.

3.The referee shall place all witnesses under oath and all testimony shall be recorded, however, it need not be transcribed unless further appeal is made.

4.The parties to an appeal, with the consent of the referee, may stipulate the facts involved in writing. The referee may decide the appeal on the basis of such stipulation, or, in the referee's discretion, may set the appeal down for hearing and take such further evidence as the referee deems necessary to enable the referee to determine the issue.

5.Subpoenas to compel the attendance of witnesses and the production of records for any hearing on an appeal may be issued by the referee or by a duly authorized representative of the bureau.

6.A witness subpoenaed for appearance at hearings before the appeal tribunal, the bureau, or a court shall be paid for each day's attendance and for each mile traveled one way, in such an amount as fixed by law in civil proceedings. Fees and mileage of such witness subpoenaed either by the bureau or on behalf of any party to an appeal shall be deemed part of the expenses of administering the unemployment compensation law.

7.Any individual may appear for oneself in any proceedings before a referee. Any partnership may be represented by any of its members. Any party in interest may be represented by counsel.

8.No referee or member of an appeal tribunal shall participate in the hearing of an appeal in which the person has an interest. Challenges to the interest of any referee or member of the appeal tribunal shall be heard and decided by the bureau.

History

• Law Implemented: NDCC 52-06-10, 52-06-13, 52-06-20, 52-06-23, 52-06-24, 52-07.1-04

N.D. Admin. Code 27-03-06-04 Adjournment - Failure to appear

1.At the referee's discretion, the referee may adjourn a hearing in order to secure additional evidence. The referee may postpone a hearing if the referee decides that such action is necessary to afford all parties a fair hearing.

2.The referee shall continue or reopen a hearing for good cause, and shall use the referee's best judgment as to when a continuance or reopening of a hearing shall be granted in order that all evidence possible be obtained. Notice of time and place of the reconvening of the hearing will be given by the referee.

3.In the event any party in interest fails to appear at a hearing, the referee may adjourn the hearing to a later date, or the referee may proceed with the hearing. The referee shall review the file and record and question any party present.

4.An appeal from a determination or redetermination may, with the permission of the referee, be withdrawn before a hearing thereon. Upon such withdrawal, the determination or redetermination as issued shall be final.

History

• Law Implemented: NDCC 52-06-10, 52-06-20, 52-06-21, 52-07.1-04

N.D. Admin. Code 27-03-06-05 Decision

The referee shall, within seven days after the hearing, set forth in writing the referee's findings of fact, the referee's decision and the reasons for such decision. Copies of such findings of fact and decision shall be mailed to all interested parties, and shall be final unless an appeal to the bureau is filed within twelve days of the date of mailing.

History

• Law Implemented: NDCC 52-06-10, 52-06-15, 52-07.1-04

Chapter 27-03-07 Second Stage Appeals

N.D. Admin. Code 27-03-07-01 Second stage appeals to the bureau

1.Any interested party to an appeal referee's decision may, within twelve days after the mailing of the appeal decision, request further review or appeal to the bureau. Such appeal shall be in writing and shall be filed with the local office of the state employment service, or at the office of the unemployment compensation division.

2.The bureau, on its own motion, may initiate a review of the decision of an appeal tribunal. No person shall participate on behalf of the bureau in any case in which the person has a direct or indirect interest.

3.All interested parties shall be notified in writing as to the acceptance of the request for review.

4.All appeals to the bureau may be heard upon the evidence in the record but the bureau, to enable it to determine an appeal, may direct the taking of additional evidence.

5.The bureau, in its discretion, may remand any claim or any issue involved in a claim to the referee for taking of additional evidence. Such testimony shall be taken by the referee in the manner provided for the conduct of appeals before the referee. Upon the completion of the taking of evidence by the referee, the claim or issue involved shall be returned to the bureau for its decision.

6.The decision of the bureau shall be in writing and shall be mailed to all parties in interest. The decision of the bureau shall be final unless within thirty days after the date of mailing or delivery of such decision to the parties in interest, a proceeding for judicial review is initiated.

History

• History: Amended effective August 1, 1978.
• General Authority: NDCC 52-06-20
• Law Implemented: NDCC 52-04-17, 52-06-10, 52-06-19, 52-06-20, 52-06-21, 52-06-22, 52-06-23, 52-06-24, 52-06-27, 52-07.1-04

N.D. Admin. Code 27-03-07-02 Representation of claimant in court - Attorney fee

Repealed effective September 1, 1985.

N.D. Admin. Code 27-03-07-03 Representation of claimant in district court - Attorney fee

The claimant's attorney fees paid by the bureau for representation in district court, only if the claimant finally prevails, are those fees charged to the claimant by the attorney and which would otherwise be payable to the attorney by the claimant. The amount of a claimant's attorney fees paid by the bureau may not exceed twenty percent of the amount of benefits at issue in the case. No attorney representing a claimant is entitled to attorney fees from the bureau if the attorney is employed by or a member of the staff of any legal services organization funded totally or in part by public funds.

History

• History: Effective September 1, 1985.
• General Authority: NDCC 52-02-02
• Law Implemented: NDCC 52-06-32

Chapter 27-03-08 Training

N.D. Admin. Code 27-03-08-01 Application of chapter

This chapter governs the administration of the North Dakota Unemployment Compensation Law as it relates to payment of benefits to persons in approved training.

N.D. Admin. Code 27-03-08-02 Definition

An otherwise eligible individual, for the purposes of this chapter, is a person who meets the requirements set forth in North Dakota Century Code section 52-06-01, except for the requirements of subdivision a of subsection 3 of North Dakota Century Code section 52-06-01 relating to availability and active search for work.

N.D. Admin. Code 27-03-08-03 Application for approval of a training or retrainingprogram

An otherwise eligible unemployed individual who has filed or files a claim for benefits may make written application to the bureau for approval of a training or retraining program which the individual proposes to attend or to which the individual has been referred by the bureau. The application shall be made on forms prescribed by the bureau and shall include the following information:

1.The individual's most recent employer and employment.

2.The proposed training or retraining course.

3.The educational institution at which the individual would receive training and retraining.

N.D. Admin. Code 27-03-08-04 Approval of training or retraining programs

An individual's application for enrollment in a training or retraining program, unless other relevant factors dictate otherwise, must be approved by the bureau for an otherwise eligible unemployed individual if the bureau finds that the training or retraining program meets all of the following requirements:

1.Reasonable and suitable work opportunities for which the individual is fitted by training, experience, and physical capabilities do not exist in the individual's locality.

2.The training course is commensurate with the individual's abilities and is designed to prepare the individual for available employment.

3.The training is conducted by an agency, educational institution, or employing unit which has been approved for such training by the bureau in consultation with the state department of vocational education, when necessary, to conduct training programs.

4.The training is vocational in nature or short-term academic training vocationally directed to an occupation or skill for which there are, or are expected to be, reasonable work opportunities available to the individual.

History

• History: Amended effective December 1, 1988.

N.D. Admin. Code 27-03-08-05 Availability of trainee

An otherwise eligible unemployed individual whose written application for approval of training or retraining has been approved by the bureau may be paid benefits for any week during a period of training or retraining if the bureau finds that all of the following have been met:

1.The individual has filed a claim on forms prescribed by the bureau.

2.A duly designated person connected with the training has certified each week that the individual has been maintaining satisfactory progress and attendance in the course.

Article 27-04 North Dakota New Jobs Training Program

Chapter 27-04-01 North Dakota New Jobs Training Program

N.D. Admin. Code 27-04-01-01 Definitions

Terms used in this chapter, unless the context clearly indicates otherwise, have the following meanings:

1."Act" means chapter 493 of the 1993 Session Laws.

2."Applicant" means a business submitting a project application for approval by job service North Dakota.

3."Debt service" means the payment of principal and interest on a repayable loan in accordance with the repayment schedule of the training agreement.

4."Eligible employee" means a person employed throughout the term of the agreement in a new job position identified in the agreement and who is subject to state income tax withholding for the state of North Dakota.

5."Full-time job" means a job providing thirty-two hours of work per week for a minimum of nine months each year.

6."Gross payroll" means the gross wages and salaries for new jobs in the first full year after the date of commencement of the project.

7."Preliminary agreement" means a written document between a business and job service North Dakota agreeing to pursue the development of a training project to train new employees.

8."Program funds" means any money loaned to a business as a result of a training agreement being entered into under the Act.

9."Reimbursable" or "project costs" means all necessary, authorized costs providing program services identified in the agreement.

N.D. Admin. Code 27-04-01-02 Project funding

An award to a new or expanding business for the purpose of training current and new employees for new job positions must be made in the form of a loan to that business by the department or a community. Funds received in the form of a loan must be used to train employees hired in new job positions and cover administrative costs identified in the agreement.

Job service North Dakota shall calculate the maximum loan amount allowable for new job training projects. The estimated state income tax withholding credit available to the project must be calculated using "withholding" averages developed by the state tax commissioner based on the hourly wages that are to be paid to the employees in new job positions covered in the agreement and must cover principal and interest payments for the entire loan repayment period. The repayment period may not exceed ten years. Reserves may be included when determining the total loan amount in order to meet initial interest payments until sufficient state withholding tax credits are collected to make payments on both principal and interest.

Financial assistance awarded to a project must be based on the actual cost of allowable services and administrative costs as identified in the agreement. The interest rate to be paid and repayment schedule on a loan shall be determined by the lending entity. Issuance of the proceeds of a loan to a business must be made on a cost reimbursement basis after the business has incurred the costs.

Approval of disbursement of the loan must be made jointly by job service North Dakota and the business. Funds requested must be commensurate with training needs. Program funds may not be used to cash flow a business.

The specific vocational preparation guide of the dictionary of occupational titles must be used for determining the length of allowable on-the-job training periods. When a specific job is not listed, time periods must be based on the specific vocational preparation guide for similar jobs.

On-the-job training may not exceed fifty percent of the individual's gross annual wages during the first full year after the date of commencement of the project.

N.D. Admin. Code 27-04-01-03 Application fee

As set forth in the preliminary agreement, job service North Dakota may charge each applicant an application fee to cover part or all administrative and legal costs incurred prior to project funding.

If job service North Dakota elects to charge an application fee, this application fee must be charged at the same or equitable basis for each business that applies.

N.D. Admin. Code 27-04-01-04 New or expanding business threshold eligibility criteria

Job positions for which training is planned must be positions intended by the employer to exist on an ongoing basis with no plan termination date.

Training is available only to individuals who are eligible employees of the business and who are subject to state income tax withholding.

Jobs that formerly existed do not qualify for new employee training services under the provision of this program. A job is considered to have "formerly existed" if it was part of the business's payroll within North Dakota at the time of commencement of the project.

The earliest date on which program funds may be used to pay training expenses incurred by the project is the date on which job service North Dakota signs the preliminary agreement.

N.D. Admin. Code 27-04-01-05 Application process

Applications for training assistance must be submitted to job service North Dakota on behalf of the business, jointly by the business, and by the department or a community certifying that the employer has qualified for a loan.

Job service North Dakota shall use an application for assistance form designated for this purpose.

Information required on the application must be described in the application instructions.

Applications must be submitted to:

North Dakota New Jobs Creation Program Job Service North Dakota Job Training Division 1000 East Divide Avenue P.O. Box 5507 Bismarck, North Dakota 58502 Required forms and instructions are available at this address.

To be funded, the employer must qualify for a loan from the department of economic development and finance, North Dakota future fund, or a community to cover the cost of the training identified in the project.

Job service North Dakota may approve, reject, defer, or refer an application to another training program.

Job service North Dakota reserves the right to require additional information, including a preaward audit or survey of the business.

Before an application is approved for funding by job service North Dakota, job service North Dakota shall investigate the applicability of other training programs such as those provided by the Job Training Partnership Act, job opportunities and basic skills program, North Dakota board for vocational and technical education, department of public instruction, and other state and federal agencies. This investigation must be completed within fifteen days or as soon thereafter from the date the application is received and all necessary information has been provided by the employer.

N.D. Admin. Code 27-04-01-06 Final agreement

Job service North Dakota shall enter into a final agreement with the business within ninety days of the commencement date of the preliminary agreement. The final agreement must contain the following provisions:

1.The starting date and ending date of the training.

2.The length of time each job category will be provided training.

3.The number of new job slots to be created and the number of new jobs to be trained.

4.A repayment schedule outlining all principal and interest payments to be made during the repayment period.

5.Default provisions that are consistent with these rules.

6.A provision specifying that, upon occurrence of an event of default, the business is ineligible for state income tax withholding credit and shall immediately remit payment in full to satisfy the remaining debt service.

N.D. Admin. Code 27-04-01-07 Notification of new jobs training projects

When a final agreement to participate and a new job training project is entered into, job service North Dakota shall provide copies of the agreement to the lending agency, state tax commissioner, local development corporation, and state treasurer within ten days of the date of signing the agreement.

If, at any time after submitting the agreement, the estimates are revised or the agreement is modified to the extent that it would affect the reporting requirements, job service North Dakota shall notify the lender, state tax commissioner, and state treasurer within thirty days.

N.D. Admin. Code 27-04-01-08 Events of default

An event of default exists if:

1.The business fails to train at a minimum the number of individuals specified in the final agreement.

2.The business fails to complete the training program.

3.Prior to project completion, the business ceases or announces the cessation of operations at the project site, unless such operations are transferred to another facility in the state of North Dakota and job service North Dakota receives assurances of continued repayment.

4.The business fails to act in accordance with the provisions of the training agreement.

5.The business directly or indirectly makes any false or misleading representations or warranties in the program application or training agreement, reports, financial statements, or any other documents that are provided to job service North Dakota.

6.The business fails to make required payments to job service North Dakota and to service providers as identified in the agreement.

7.The business becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature or makes an assignment for the benefit of creditors or the business applies for or consents to the appointment of a trustee or receiver for the business or the major part of the property.

8.The business ceases or announces the cessation of operation at the project site prior to completion date of the term of the agreement, unless such operations are transferred to another facility in the state of North Dakota and job service North Dakota receives assurance of continued employment and repayment.

9.The business takes corporate action to affect any of the preceding conditions of default.

10.The business fails to file and pay any state taxes that may be required to be filed and paid to the state of North Dakota.

N.D. Admin. Code 27-04-01-09 Options and procedures on default

The business failing to comply with any requirements other than repayment contained in the training agreement must be sent written notice from job service North Dakota which specifies the issues of noncompliance and must be allowed twenty days from the date the notice is sent to affect and cure. If noncompliance is of such a nature that a cure cannot be reasonably accomplished within twenty days, job service North Dakota may extend the period of corrective action to a maximum of sixty days.

Job service North Dakota shall notify the lending institution, local development corporation, state tax commissioner, and state treasurer within five working days, using a designated notice of possible default form, whenever job service North Dakota determines that an event of default has occurred or is likely to occur.

Job service North Dakota shall document its efforts to reconcile the condition responsible for the default and shall provide the lender, state tax commissioner, and state treasurer with copies of all related correspondence upon request.

If job service North Dakota's efforts to reconcile are successful, job service North Dakota shall notify the lender, local development corporation, state tax commissioner, and state treasurer in writing to continue project operations. Continuation of project operations may be subject to new conditions imposed by job service North Dakota as part of the reconciliation.

When job service North Dakota's efforts to reconcile are unsuccessful, job service North Dakota shall provide a copy of the final determination to the lending institution, local development corporation, state tax commissioner, and state treasurer.

N.D. Admin. Code 27-04-01-10 Remedies upon default

The exercise of remedies upon the occurrence of any event of default described above is subject to applicable limitations of federal bankruptcy law.

If job service North Dakota determines that a business is in default and the default has not been cured within the time period stated in the contract, job service North Dakota may notify the state tax commissioner and the state treasurer to withhold state income tax withholding credit payments to the business without notice to the business.

No remedy conferred upon or reserved to job service North Dakota, the state tax commissioner, or the state treasurer by the Act, these rules, or the training agreement is intended to be exclusive of any other current or future remedies existing in law or equity or by statute.

Any delay or omission by job service North Dakota to exercise any right or power of the Act, these rules, or the training agreement does not relinquish or diminish authority to act and does not constitute a waiver of default status. Any such right or power may be exercised at any time required and as often as deemed expedient.

Unless required by these rules, neither job service North Dakota, the state tax commissioner, nor the state treasurer is required to provide written or other notice to the business regarding any circumstances related to and including a declaration of an event of default.

An event of any requirement of the Act, these rules, or the training agreement relating to a default should be reached by either party and then waived by the other party. Such waiver is limited to the specific breach being waived and has no bearing on any subsequent breach.