Idaho Administrative Code — Labor, Department of

IDAPA 09 Labor, Department of

09.02.01 Rules of the Disability Determinations Service

IDAPA 09.02.01.000 Legal Authority

These rules are promulgated under Section 72-1333, Idaho Code.(3-23-22)

IDAPA 09.02.01.001 Scope

These rules govern time limits for submission of invoices by vendors for payment for services.(3-23-22)

IDAPA 09.02.01.002 (Reserved)

IDAPA 09.02.01.003 Administrative Appeals

There is no administrative appeal from any proceedings brought pursuant to this chapter.(3-23-22)

IDAPA 09.02.01.004 (Reserved)

IDAPA 09.02.01.010 Definitions

01.Consultative Examinations. Con sultative examinations include physical and mental examinations, x-rays, laboratory tests, and special diagnostic studies from qualified sources.(3-23-22)

02.Medical Evidence of Record. Medical evidence of record includes medical history reports, medical opinions, treatment records, copies of laboratory reports, prescriptions, ancillary tests, x-rays, operative and pathology reports, consultative reports, and other technical information used to document disability claims. (3-23-22)

03.Travel. Travel includes costs associated with applicants, beneficiaries, recipients, and other authorized individuals in connection with attending consultative examinations or disability hearings by commercial carrier (air, rail, taxi, shuttle, or bus), or privately owned vehicles.(3-23-22)

04.Interpretive Services. Interpretive services include authorized contracted interpreters for individuals with limited English proficiency or requiring language assistance for a consultative examination or disability hearing.(3-23-22)

IDAPA 09.02.01.011 (Reserved)

IDAPA 09.02.01.022 Payment for Services

In order to receive payment for services provided, submission of bills must be within one year from date of service.

This includes consultative examinations, medical evidence of record, travel, and interpretative services.(3-23-22)

IDAPA 09.02.01.023 (Reserved)

09.01.30 Unemployment Insurance Benefits Administration Rules

IDAPA 09.01.30.000 Legal Authority

These rules are promulgated under Section 72-1333, Idaho Code.(3-23-22)

IDAPA 09.01.30.001 Scope

These rules govern claims for unemployment insurance benefits.(3-23-22)

IDAPA 09.01.30.002 Administrative Appeals

Administrative appeals under this chapter are governed by Section 72-1368, Idaho Code, and IDAPA 09.01.01.

IDAPA 09.01.30.003 (Reserved)

IDAPA 09.01.30.010 Definitions

01.Central Claims Office.

A claims office designated by the director, where unemployment claims throughout the state are processed.(3-23-22)

02.Initial Claim. The first claim for benefits made by an unemployed individual during a continuous period of unemployment. An initial claim may be either new or additional.(3-23-22)

03.Interstate Claim. A claim filed by a worker who resides in a state other than the state (or states) in which he has earned wages in covered employment.(3-23-22)

04.Intrastate Claim. A claim filed by a worker who resides in Idaho and has earned wages within or as federal wages assigned to Idaho.(3-23-22)

05.Monetary Determination. A determination of eligibility which lists a claimant’s base period employer(s) and wages and establishes, if the claimant is eligible, his benefit year, his weekly benefit amount, and his total benefit amount.(3-23-22)

06.Non-Monetary Determination. A determination issued by a claims examiner with respect to the personal eligibility conditions of a claimant.(3-23-22)

IDAPA 09.01.30.011 (Reserved)

IDAPA 09.01.30.125 Alien Eligibility

01.Benefit Eligibility.

To be eligible for benefits, an alien must fall within one (1) of the following three (3) categories at the time the work on which the claim is based was performed and at the time benefits are claimed, the alien must have current, valid authorization to work from the U.S. Department of Homeland Security in order to meet the continuing eligibility requirement of being able and available to work (unless the alien claimant is a Canadian resident who is claiming benefits under the Interstate Benefit Payment Plan, in which case the claimant must satisfy only Canadian availability requirements). Ref. Sec. 72-1366(4), (19), Idaho Code.(3-23-22)

a.Permanent Residence. Aliens who have been lawfully admitted to the United States as “immigrants” and those whose status has been adjusted from that of “non-immigrant” under the Immigration and Nationality Act. Evidence of this status is the Alien Registration Receipt Card, or “green card,” issued to each lawful permanent resident by the U.S. Department of Homeland Security.(3-23-22)

b.Performing Services. “Lawfully present for purposes of performing services” includes three (3) groups of aliens:(3-23-22)

i.Canadian and Mexican residents who commute daily or seasonally and are authorized to work in the United States;(3-23-22)

ii.Legally-admitted non-immigrants who are granted a status by the U.S. Department of Homeland Security which authorizes them to work in the United States during their stay; and(3-23-22)

iii.Other aliens with U.S. Department of Homeland Security authorization to work in the United States regardless of their status.(3-23-22)

c.Permanently Residing Under Color of Law. The category of individuals who are “permanently residing in the United States under color of law” includes the following groups of aliens:(3-23-22)

i.Refugees, asylees, and parolees, as identified in the Immigration and Nationality Act;(3-23-22)

ii.Aliens presumed by the U.S. Department of Homeland Security to be lawfully admitted for permanent residence; and(3-23-22)

iii.Aliens who, after review of their particular circumstances under U.S. Department of Homeland Security statutory or regulatory procedures, have been granted a status which allows them to remain in the United States for an indefinite period of time. For informal U.S. Department of Homeland Security action to authorize an alien’s residence under “color of law,” the U.S. Department of Homeland Security must know of the alien’s presence, and must provide the alien with official, documented assurance that enforcement of deportation is not planned.

IDAPA 09.01.30.126 (Reserved)

IDAPA 09.01.30.200 Canceling Claims

Upon the written request of a claimant, a claim may be canceled at any time, provided that the claimant did not misrepresent or fail to report a material fact in making the claim and the claimant has repaid any benefits received on the claim, unless the benefits received will be offset from a new claim the claimant is filing. Ref. Sec. 72-1327A, Idaho Code.(3-23-22)

IDAPA 09.01.30.201 (Reserved)

IDAPA 09.01.30.225 Deceased Claimants

Upon the death of a benefit claimant who has completed a compensable period prior to his death, distribution of benefits due him will be made to the surviving spouse or, if none, to the dependent child or children. If there is no surviving spouse nor dependent child or children, the benefits become the property of the claimant’s estate. (3-23-22)

IDAPA 09.01.30.226 (Reserved)

IDAPA 09.01.30.250 Determinations/Appellate Processes

01.Rebuttal Procedure.

Whenever any information is provided in response to a claim, and the information contradicts a statement made previously, all interested parties will be given an opportunity for rebuttal.

Ref. Sec. 72-1368(3), Idaho Code.(3-23-22)

02.Reestablishing Eligibility After a Determination of Ineligibility. Evidence of requalifying wages includes, but is not limited to, the name of the employer, the mailing address, the dates of employment, the type of employment performed, and the claimant’s gross earnings. Ref. Sec 72-1366(14), Idaho Code.(3-23-22)

IDAPA 09.01.30.251 (Reserved)

IDAPA 09.01.30.375 Fully Employed/Not Unemployed

Ref. Section 72-1312(1), Idaho Code.(3-23-22)

01.Leave of Absence. A claimant who is on a mutually agreed upon leave of absence, and whose employer has committed to the claimant's return to work at the end of the leave, is employed and not eligible for benefits. (3-23-22)

02.Suspension. A claimant suspended with or without pay for a specific number of days, who has been given a date to resume employment after the suspension, is not considered unemployed and is not eligible for benefits.(3-23-22)

IDAPA 09.01.30.376 (Reserved)

IDAPA 09.01.30.425 New Claims/Additional Claims

Ref. Sec. 72-1308, Idaho Code.(3-23-22) 01.

Claims for Benefits, Delayed Filing. When the Central Claims Office has determined that a claimant’s attempt to file an initial claim was delayed due to problems with the Department’s telephone or electronic filing system, the claim may be backdated if the claimant reported the access problem to the Central Claims Office within seven (7) days of the date the problem occurred. When a claim is backdated, the continued claim report for the period of time involved is timely if filed during the same week or the next week after the claim is filed.(3-23-22)

02.Effective Date of Backdated Claims. When the filing of an initial claim for benefits is backdated due to a Department system malfunction, the effective date is the Sunday of the week in which the claimant first reported to the Central Claims Office to file the claim or attempted to access the telephone or electronic claim filing system and there were problems with the system.(3-23-22)

03.Filing of New Claims, Additional, and Reopen Claims. For purposes of this section, “new claim” means the first initial claim made in a benefit year. Intrastate and interstate claims, including, without limitation, new claims, additional claims, and reopen claims, may be filed electronically or by telephone at the Department’s discretion.(7-1-25)

a.Electronically Filed Claims. Claimants may file claims electronically by accessing Idaho’s Internet claim system or, if filing through an American Job Center, by accessing the Department’s Intranet claim system.

Electronically filed claims will be date and time stamped at the time the claimant completes the application process.

The claim will not be completed until the claimant has finished the process and has electronically submitted the claim to the Department. A claim filed via the Internet or an American Job Center is effective as of the Sunday of the week of the date shown on the date/time stamp.(3-23-22)

b.Interstate Claims. Any claim filed by an interstate claimant is accepted in the same manner and conditions for which claims are accepted from intrastate claimants. (3-23-22)

c.Telephone Claims. A claimant may also file a claim by calling the Central Claims Office. A claim filed via telephone is effective as of the Sunday of the week in which the claimant first calls the Central Claims Office to initiate the claim.(3-23-22)

d.Claimants' Electronic Verification. A unique password or personal identification number approved by the Department may be used by a claimant or an employer to submit information or engage in transactions with the Department through electronic or telephonic means. Use of this method of verification has the same force and effect as a manual signature. (7-1-25)

04.Registration/Reporting Requirements -- Interstate Claimants. Interstate claimants are required to comply with the same reporting requirements prescribed for regular Idaho intrastate claimants. Ref. Sec. 72- 1366(1), (2), Idaho Code.(3-23-22)

05.Additional Claim or Reopened Claim. A claim must be reestablished after a claimant has failed to report or has reported excessive earnings for two (2) or more consecutive weeks. (3-23-22)

06.Use of Wage Credits. All unemployment insurance wage credits from any source that are assignable to the state of Idaho will be used in establishing a claim and determining the claimant’s monetary eligibility. Ref. Sec. 72-1367(1), Idaho Code.(3-23-22)

IDAPA 09.01.30.426 (Reserved)

IDAPA 09.01.30.550 Reporting Requirements

Each claimant must report weekly or biweekly for benefits as directed. When filing claim reports, a claimant must use the reporting method assigned by the Department. Failure to file timely reports in a manner required by this rule will result in ineligibility for benefits for the week(s) claimed. Ref. Section 72-1366(1), Idaho Code.(3-23-22)

01.Mailed Reports. Reports that are mailed are considered timely when the envelope containing the report is postmarked within nine (9) calendar days immediately following the week(s) being claimed, except if the ninth day is a holiday, the report period will extend to the next working day.(3-23-22)

02.Internet Reports. Reports filed via the Internet are considered timely when made between 12:00 a.m., mountain time zone, of the Sunday following the week being claimed and midnight 11:59 p.m., mountain time zone of the Saturday following the week being claimed.(3-23-22)

03.Facsimile Reports. Reports filed by facsimile are considered timely when transmitted on a form provided by the Department to a telephone number designated by the Department to receive such documents within nine (9) calendar days immediately following the week(s) being claimed, except if the ninth day is a holiday, the reporting period will extend to the next working day. Reports are deemed filed upon receipt by the Department.

04.Electronic Mail Reports. Reports filed by electronic mail are considered timely when electronically mailed in a format provided by the Department to an email address designated by the Department to receive such documents within nine (9) calendar days immediately following the week(s) being claimed, except if the ninth day is a holiday, the reporting period will extend to the next working day. Reports are deemed filed upon receipt by the Department.(3-23-22)

05.Telephone Reports. Reports filed by telephone are timely if the claimant contacts the Central Claims Office at a telephone number designated by the Department to provide such reports during regular business hours within nine (9) calendar days immediately following the week(s) being claimed, except if the ninth day is a holiday, the report period will extend to the next working day.(3-23-22)

06.When Report Missing. If a claimant establishes, by credible and corroborated evidence, that a missing report was properly filed as required by this rule, a replacement report will be considered timely.(3-23-22)

IDAPA 09.01.30.551 (Reserved)

IDAPA 09.01.30.700 Partial Payments of Amounts Owed the Department

Upon the Department's receipt of a partial payment of an overpayment and accrued interest and penalties thereon, the Department must, unless other arrangements have been made with the debtor and approved by the Department, apply the partial payment to the amounts owed as follows:(3-23-22)

01.Interest. The partial payment must be applied first to any accrued interest of the amounts due, starting with the oldest accrued interest;(3-23-22)

02.Penalties. After any accrued interest has been paid in full, the partial payment must be applied next to any assessed penalties, starting with the oldest assessed penalty;(3-23-22)

03.Fraud Overpayments. After all accrued interest and assessed penalties have been paid in full, the partial payment must be applied next to any fraud overpayments due, starting with the oldest fraud overpayment; and

04.Nonfraud Overpayments. After all fraud overpayments have been paid in full, the partial payment must be applied next to any nonfraud overpayments, starting with the oldest nonfraud overpayment. Ref. Sec. 72- 1369, Idaho Code.(3-23-22)

IDAPA 09.01.30.701 (Reserved)

IDAPA 09.01.30.725 Recoveries

Unless the overpayment resulted from a determination that the claimant willfully made a false statement or willfully failed to report a material fact, overpayments will be deducted from any future benefits payable. Ref. Secs. 72-1369 and 72-1366, Idaho Code.(3-23-22)

IDAPA 09.01.30.726 (Reserved)

IDAPA 09.01.30.750 Waiver of Repayment

An interested party must submit a written request for a waiver of repayment within fourteen (14) days of the date of mailing of the Determination of Overpayment. Ref. Sec.72-1369(3-23-22)

IDAPA 09.01.30.751 (Reserved)

09.01.01 Rules of Administrative Procedure of the Department of Labor

IDAPA 09.01.01.000 Legal Authority

These rules are promulgated under Sections 45-616 and 72-1333(2), Idaho Code.(3-23-22)

IDAPA 09.01.01.001 Scope

These rules govern all procedures for rulemaking, petitions for declaratory rulin gs, and determinations and appeals pursuant to the Employment Security Law, Title 72, Chapter 13, Idaho Code, and the Claims for Wages Act, Title 45, Chapter 6, Idaho Code, and for other programs administered by the Department unless otherwise specified by law.

IDAPA 09.01.01.002 (Reserved)

IDAPA 09.01.01.004 Payments to the Department

Any payment tendered to the Department will be for collection only and will not constitute payment of any amount due until the payment clears the appropriate financial institution. Should the Department incur any additional expense in the payment collection, the expense will be paid by the person who tenders said payment to the Department.

IDAPA 09.01.01.005 (Reserved)

IDAPA 09.01.01.010 Definitions

01.Appeals Examiner.

A Department hearing officer designated to hear administrative appeals pursuant to the Employment Security Law and the Claims for Wages Act.(3-23-22)

02.Claims for Wages Act. The Claims for Wages Act codified at Title 45, Chapter 6, Idaho Code.

03.Department. The Idaho Department of Labor.(3-23-22)

04.Determination. Unless the context clearly suggests otherwise, reference to a determination in these rules includes a determination, redetermination, or a revised determination.(3-23-22)

05.Employment Security Law. The Employment Security Law codified at Title 72, Chapter 13, Idaho Code.(3-23-22)

IDAPA 09.01.01.011 (Reserved)

IDAPA 09.01.01.018 Declaratory Ruling Procedures

Form and Contents of Petitions for Declaratory Rulings on Applicability of Statutes or Rules. Any person petitioning for a declaratory ruling on the applicability of a statute or Department rule must comply with this rule.(3-23-22)

01.Form of Petition. The petition must: identify the petitioner and state the petitioner’s interest in the matter; state the declaratory ruling that the petitioner seeks; and indicate the statute, or rule, and the factual allegations upon which the petitioner relies to support the petition. (3-23-22)

02.Legal Assertions. Citations of cases and/or statutory provisions may accompany the legal assertions in a petition for a declaratory ruling.(3-23-22)

03.Filing Petition. A petition for a declaratory ruling on applicability of statutes or rules must be filed with the Director of the Department at 317 Main Street, Boise, Idaho 83735. (3-23-22)

IDAPA 09.01.01.019 (Reserved)

IDAPA 09.01.01.045 Conduct of Appeals Hearing

Upon request for appeal, a hearing before an appeals examiner will be set. Written notice of the time and place of the hearing will be mailed or electronically transmitted to each interested party not less than seven (7) days prior to the hearing date.(3-23-22)

01.Telephone Hearings. Hearings will be held by telephone unless, at the sole discretion of the appeals examiner, a personal hearing should be set. In deciding the manner in which to conduct the hearing, the appeals examiner will consider factors, including but not limited to the desires of the parties, possible delay and expense, the burden of proof, the complexity of the issues, and the number and location of witnesses.(3-23-22)

02.Continuance. The appeals examiner may postpone or continue a hearing for good cause on the examiner's own motion or that of any party, before a hearing is concluded. The appeals examiner may dismiss an appeal for good cause, such as abandonment of the appeal.(3-23-22)

03.Rehearing. An application for rehearing will be in writing and filed in person or postmarked within ten (10) days after the appeals examiner's decision is served.(3-23-22)

04.No Appearance Hearings. If no party appears to present additional evidence, a decision may be based on the existing record. For this purpose, the existing record will consist of documents maintained by the Department in the ordinary course of adjudicating the issues in the case, copies of which are provided to the parties with the notice of hearing.(3-23-22)

05.Exhibits and Recordings. Hearing exhibits and recordings may be destroyed, reused, or otherwise disposed of after the expiration of the time period for appeal from the decisions of the appeals examiner.(3-23-22)

06.Failure to Respond to Subpoena. If a person fails to respond to a subpoena issued by mail, the appeals examiner will proceed with the scheduled hearing and determine, after hearing available testimony, whether the subpoena is still necessary and reasonable. If so, the hearing will be continued and a second subpoena will be issued and personally served.(3-23-22)

07.Witness Fees. Individuals who attend hearings before the appeals examiner as subpoenaed witnesses, not parties, are entitled to receive a fee of seven dollars and fifty cents ($7.50) for each day or portion thereof for attendance. In no case will a witness be paid more than seven dollars and fifty cents ($7.50) for any one (1) day. Subpoenaed witnesses are entitled to mileage expense at the current allowable mileage reimbursement rate as determined by the Idaho State Board of Examiners. For appeals under the Employment Security Law, such witness fees and mileage expenses will be paid from the Employment Security Administration fund. Under no circumstances will interested parties to a hearing be granted witness fees or mileage expenses. Mileage fees are not allowed for vicinity travel.(3-23-22)

08.Undecided Issues. When it is apparent that there is no prior ruling on an issue that must be decided under the Act, the appeals examiner may hear and decide the issue.(3-23-22)

09.Type of Hearing. The proceeding before an appeals examiner will be a hearing “de novo” or original hearing and not solely a review proceeding. Ref. Sec. 72-1368(6) and Sec. 45-617(7), Idaho Code. (3-23-22)

10.Role of Appeals Examiner . The appeals examiner will function as a fact finder and not solely as a judge.

The appeals examiner will have the responsibility of developing all the evidence that is reasonably available.

(7-1-25)

11.Order of Witnesses. The appeals examiner, in the exercise of reasonable discretion, will direct the order of witnesses and develop evidence in a logical and orderly manner to move the hearing along as expeditiously as possible.(7-1-25)

12.Evidence. The appeals examiner may exclude evidence that is irrelevant, unduly repetitious, or excludable on constitutional or statutory grounds, or on the basis of any evidentiary privilege provided by statute or recognized in the courts of this state. All other evidence may be admitted if it is of a type commonly relied upon by prudent persons in the conduct of their affairs.(7-1-25)

13.Disruptive Individuals. The appeals examiner may exclude disruptive individuals from the hearing or may postpone the hearing if the integrity of the proceedings is being compromised. If an interested party is excluded, they will be provided a copy of the recording of the proceedings and given an opportunity to submit written evidence and argument prior to the issuance of the decision and the opposing party will be given an opportunity to respond.(7-1-25)

14.Challenge of General Knowledge. If judicially cognizable facts or general, technical, or scientific facts within the appeals examiner's specialized knowledge are used in the decision, the parties will be given an opportunity to challenge them at the time of the hearing, or at the time of the issuance of the decision.(7-1-25)

15.Closing Arguments. Closing arguments will be limited to five (5) minutes for each party unless the appeals examiner grants an exception.(7-1-25)

IDAPA 09.01.01.046 Communication with Appeals Staff

No party involved in an appeal may communicate, either direct ly or indirectly, with appeals examiners, the Chief of the Appeals Bureau, or clerical staff of the Appeals Bureau, regarding any issue of fact or law relevant to an appeal, unless all parties involved have been provided notice and an opportunity to participate in such communication. No person acting on behalf of any party, including the Idaho Department of Labor, may attempt to influence the disposition of an appeal through such communications. No appeals examiner may knowingly cause a communication prohibited by this section to be made.(3-23-22)

01.Prohibition of Ex Parte Contacts. The prohibition on ex parte contacts contained in this rule applies from the time an appeal is filed pursuant to IDAPA 09.01.01.025 or IDAPA 09.01.01.027 until the appeal becomes final and conclusive pursuant to Sections 72-1368 and 45-617, Idaho Code.(3-23-22)

02.Issues of Fact. As used in this rule, the term “issue of fact or law relevant to an appeal” includes any matter relating to the merits of an appeal but does not include questions of appeals procedure or case status inquiries. Parties may not direct questions of appeals procedure or case status inquiries to the appeals examiner assigned to their case but rather to other appeals examiners, the Chief of the Appeals Bureau (unless he or she is functioning as the appeals examiner in the case), or to clerical staff of the Appeals Bureau.(3-23-22)

03.Reporting Prohibited Contacts. An appeals examiner or other Appeals Bureau employee who receives a communication prohibited by this rule must place in the record of the case all such written communications or a memorandum stating the substance of all such oral communications. The Appeals Bureau must send a full copy of the communication to other interested parties to the appeal and allow an appropriate time for the parties to respond.

IDAPA 09.01.01.047 (Reserved)

IDAPA 09.01.01.060 Industrial Commission Review of Appeals Examiner Decisions

01.Claim for Review Under the E mployment Security Law. A claim for review of the appeals examiner's decision, as provided in Section 72-1368, Idaho Code, must be made in writing, signed by the person claiming the review or by his attorney or agent, and filed with the Idaho Industrial Commission in accordance with rules adopted by the Commission. Ref. Sec. 72-1368(7) Idaho Code.(3-23-22)

02.Transcripts. Upon receipt of a notice that a claim for review has been filed with the Industrial Commission, a true and correct transcript of the recorded proceedings must be prepared if ordered by the Commission. Copies of transcripts or recording of the proceedings, together with exhibits received in the case, must be transmitted by the Department to the Commission and provided to all interested parties without charge. (3-23-22)

IDAPA 09.01.01.061 (Reserved)

09.05.03 Rules for Determining Bargaining Representatives

IDAPA 09.05.03.000 Legal Authority

These rules are promulgated under Section 72-1382, Idaho Code, and Title 67, Chapter 52, Idaho Code.(3-23-22)

IDAPA 09.05.03.001 Scope

The rules govern all proceedings before the Department b rought pursuant to Section 72-1382, Idaho Code, or concerning mediation proceedings brought pursuant to Section 72-1381, Idaho Code. IDAPA Sections 09.05.03.011, 09.05.03.012, 09.05.03.013, and 09.05.03.014 relate only to powers concerning determination of representation under Section 72-1382, Idaho Code, and for conciliation and mediation purposes under Section 72-1381, Idaho Code.

(3-23-22)

IDAPA 09.05.03.002 (Reserved)

IDAPA 09.05.03.003 Administrative Appeals

There is no administrative appeal under this chapter.(3-23-22)

IDAPA 09.05.03.004 (Reserved)

IDAPA 09.05.03.012 Union Agreements and Insulated Period

Once the contract becomes effective as a bar to an election, no petition will be accepted until the end of the period during which the contract is effective as a bar. A contract for a fixed period of more than three (3) years will bar an election sought by a contracting party during the life of the contract, but will act as a bar to an election sought by an outside party for only three (3) years following its effective date. A contract of no fixed period will not act as a bar at all. Petitions filed not more than ninety (90) days but over sixty (60) days before the end of the contract bar period will be accepted and can bring about an election, or if a petition is filed after a contract expires it will be accepted.

The last sixty (60) days of the contract bar period is called an insulated period. During that time the parties to the existing contract are free to negotiate a new contract or to agree to extend the old one. If they do so, petitions will not be accepted until ninety (90) days before the end of the new contract bar period.(3-23-22)

IDAPA 09.05.03.013 Strikers Deemed Employees

Strikers are deemed to be employees even though replaced by other workers for representation purposes only and may be entitled to vote in any election conducted within twelve (12) months after the commencement of the strike.

(3-23-22)

IDAPA 09.05.03.014 Employee Representation

01.Petition or Union Representation.

Any employer, union, or employee may petition the Department to conduct an investigation and/or hearing to determine whether the majority of the employees of any given business wish union representation and what union they wish to be represented by. Such petition must fully set forth and allege the exact question concerning representation of employees in the collective bargaining unit. The request must fully state the name of the employer, the place of business, the type of business, the name of the labor organization or organizations involved; and if the request is made by the employer it must include a list of employees employed in said unit.(3-23-22)

02.Requests Made by Unions. If the request is made by a union, such union must submit written statements or authorization cards from at least thirty percent (30%) of those workers in the unit to establish there is such a question of representation, except in establishments having less than six (6) employees, in which case twentyfive percent (25%) of the employees involved will be deemed sufficient. A description of the bargaining unit must be given.(3-23-22)

03.Collective Bargaining Unit. When a question arises concerning representation of employees in a collective bargaining unit the Department will investigate in order to determine the wishes of the majority of the employees in said unit.(3-23-22)

04.Hearings. In any such investigation, a hearing may be held after giving due notice to all interested parties as provided for in the procedural rules of the Department. If as a result of such hearing or investigation the parties agree which union, if any, may properly represent them, a certification will be made and issued by the Director of the Department designating the union for bargaining purposes. If after such a hearing and/or investigation, there is any doubt as to the wishes of the majority of the employees employed in said unit, a time and place will be scheduled to permit the employees to vote by secret ballot.(3-23-22)

05.Preparation of Ballot. In all cases where a secret ballot is taken, the ballot must be prepared by the Department to permit a vote for or against representation by anyone named on the ballot. In case of two (2) or more unions, a place must be provided for a vote against any union.(3-23-22)

06.Waiver of Investigation and Hearing. The investigation and hearing may be waived by consent of the parties pursuant to written stipulation by all parties involved, and a cross check may be conducted by representatives of the Department. Such cross check will be made by comparing the signatures or names appearing on the employer’s payroll with signatures on authorization cards submitted by the union involved. At such cross check, no representatives will be permitted to be present except representatives of the Department. The Department may, at its discretion, also question individual employees.(3-23-22)

07.Elections. If it becomes necessary to conduct an election, such election will be held only after appropriate notice is posted by the department in a conspicuous place where the employees are employed. Whenever possible, the election will be held on the premises of the employer and at a time calculated to best permit all employees who are eligible to vote, and so far as possible at a time which will minimize the disruption of the employer’s business. Such notice must be posted at least twenty-four (24) hours before the election and in those cases where, because of the nature of the shifts, a longer time is necessary, it shall be so given. Every effort will be made to hold the election reasonably soon after the twenty-four (24) hour period except in those exceptional cases. (3-23-22)

08.Observers. The parties involved may each designate and have present at the election only one (1) observer. Neither management nor union officials may act as observers. Employees having the right to hire or fire or to effectively recommend hiring or firing will be considered as management personnel of the employer and will not be permitted to vote at such election or to act as observers. No member of an employer’s immediate family will be eligible to vote at such representation election or to act as an observer, or any principal stockholder owning ten percent (10%) or more of the company stock.(3-23-22)

09.Voting Eligibility. All employees in said bargaining unit on the payroll at the time the petition was received in the Department may vote. Regular part-time employees will be permitted to vote. Casual part-time employees or workers who are employed for a limited period will not be permitted to vote.(3-23-22)

10.Challenging Eligibility. Any interested party or representative of the Department may challenge the eligibility of any person to participate in the election for cause under these rules. The ballots of such challenged person will be impounded. Upon conclusion of the election and before the ballots are counted, the parties will be permitted to offer evidence in support of their contentions as to eligibility to vote, after which time a ruling will be made sustaining or overruling the objection. If overruled, the ballot will be placed in the ballot box.(3-23-22)

11.Ballots. Ballots prepared by the Department will set forth the question involved. One ballot will be given to each eligible voter. Such ballots are not to be signed by the voters. Voters will be requested to place an “X” in a square which will require only “YES” or “NO” votes. The ballot must be prepared to permit a vote against any representation.(3-23-22)

12.Deauthorization of Union Representation. A petition in a union shop for an election to determine whether there should be any union representation or not, may be filed with the Department. In such petition, it must be s hown at least thirty percent (30%) or more of the employees in the unit covered by the agreement desire deauthorization. Only employees in the bargaining unit will be counted for this purpose subject to the provisions of Subsection 014.12.(3-23-22)

13.Petition for Election. The demand or petition set forth in Subsection 014.12 need not be in any particular form, but must comply with the procedural rules of the Department. No such election as set forth in Subsection 014.12 will be conducted among employees presently covered by a valid collective bargaining agreement, except when filed in accordance with the reopening or termination clause of such agreement.(3-23-22)

14.Existing Collective Bargaining Agreement. An existing collective bargaining agreement is a bar to any representation election except as provided for within Section 012.(3-23-22)

15.Frequency of Election. No election may be held in any bargaining unit or subdivision thereof within which a valid election was held in the preceding twelve (12) month period.(3-23-22)

IDAPA 09.05.03.015 (Reserved)

09.01.35 Unemployment Insurance Tax Administration Rules

IDAPA 09.01.35.000 Legal Authority

These rules are promulgated under Section 72-1333, Idaho Code.(3-23-22)

IDAPA 09.01.35.001 Scope

These rules govern Department procedures and the rig hts and duties of employers under the Unemployment Insurance Program.(3-23-22)

IDAPA 09.01.35.002 Administrative Appeals

Administrative appeals from determinations under this chapter may be taken as provided in IDAPA 09.01.01, and Sections 72-1361 and 72-1368, Idaho Code.(3-23-22)

IDAPA 09.01.35.003 (Reserved)

IDAPA 09.01.35.011 General Provisions

01.Penalties and Interest on Bankruptcy. Penalt y and/or interest shall not be assessed on amounts covered in the Department’s Proof of Claim with the Bankruptcy Court for the period after the filing date of the Bankruptcy Petition and ending with the conclusion of bankruptcy proceedings and distribution of assets. Post petition penalty and interest shall be compromised, provided the amount due is paid in full by a date established after the termination of the bankruptcy proceedings. Ref. Section 72-1356, Idaho Code.(3-23-22)

02.Lien Interest. Lien interest on a delinquent account shall be assessed against the remaining unpaid balance computed from the day following the recording of a tax lien. Ref. Section 72-1360, Idaho Code.(3-23-22)

03.Determinations and Appeals. The rules governing the form, filing, and other procedures relating to determinations under this chapter, and any appeal from those determinations, are provided in IDAPA 09.01.01.

04.When Reports Replace Determinations. In cases where a determination of amounts due is made by the Department pursuant to Section 72-1358, Idaho Code, the reports shall replace the determination and will be used to establish the employer’s liability if:(3-23-22)

a. The employer files reports for the periods covered by the determination before the determination becomes final; and(3-23-22)

b.The Department determines that the reports are accurate and complete. If the Department determines the reports are not accurate or complete, the reports shall be treated as an appeal of the determination.

05.Release of Lien upon Payment in Full. An amount secured by a lien shall be deemed to be satisfied when payment in full is received by the Department in the form of cash, money order, or other certified funds, or proof presented that a check or other negotiable instrument has been honored by its drawer upon presentment. Ref. Section 45-1908, Idaho Code.(3-23-22)

IDAPA 09.01.35.012 (Reserved)

IDAPA 09.01.35.040 Compromise of Penalty and Civil Penalty

Pursuant to Section 72-1354, Idaho Code, the Director or his auth orized representative may, for good cause shown, compromise the amount of penalties owed on an employer account. An employer shall submit a request in writing for compromise of penalties, setting forth the reason(s) for the delinquency, and attaching any available evidence supporting the request.(3-23-22)

01.Good Cause. An employer has established good cause if the employer can show that one (1) of the following criteria has been met:(3-23-22)

a.The reason for the delinquency was beyond the reasonable control of the employer. Examples of circumstances that are beyond the reasonable control of the employer include, but are not limited to, the following:

i.Departmental error, including but not limited to providing incorrect information to the employer or not furnishing proper forms in sufficient time to permit timely payment of contributions;(3-23-22)

ii.Death or serious illness or injury of the employer or the employer’s accountant or members of their immediate families;(3-23-22)

iii.Destruction by fire or other casualty of the employer’s place of business or business records; or

iv.Postal service delays.(3-23-22)

b.The delinquency was due to circumstances for which the imposition of penalties would be inequitable.(3-23-22)

c.Good cause is also established in the case of an employer who has never received a status determination, who has never paid any contributions to the director, who voluntarily approaches the Department to inquire as to whether workers are engaged in covered employment, and the failure to pay contributions was due to the employer’s good faith belief that the employer was not a covered employer pursuant to the provisions of Idaho Employment Security Law. Ref. Section 72-1354, Idaho Code.(3-23-22)

IDAPA 09.01.35.041 (Reserved)

IDAPA 09.01.35.062 Substance Vs. Form

In recognizing covered employers, covered employment and in classifying wages , the Department shall examine both the substance and the form of the arrangement, contract, transaction or event, but more consideration shall be given to the substance of the arrangement, contract, transaction or event than to the form. If it is determined that true economic substance is lacking or the operations, accounting practices and records do not reflect the purported form or legal status, the Department shall, regardless of the form, determine proper coverage or classification.(3-23-22)

IDAPA 09.01.35.063 (Reserved)

IDAPA 09.01.35.112 Determining Status of Worker

01.Determining if Worker Is an Employee. In making a determination as to whether a worker is performing services in covered employment, it shall be determined whether the worker is an employee. To determine whether a worker is an employee, the following factors may be considered:(3-23-22)

a.The way in which the business entity represented its relationship with the worker prior to the investigation or litigation, including representations to the Internal Revenue Service;(3-23-22)

b.Statements made to the Department;(3-23-22)

c.Method of payment to the worker, in particular whether federal, state, and FICA taxes are withheld from paychecks; and(3-23-22)

d.Whether life, health, or other benefits are provided to the worker at the business entity’s expense.

02.Determining if Worker Is an Independent Contractor. If it cannot be determined that a worker is an employee pursuant to Subsection 112.01 above, then a determination shall be made whether the worker is an “independent contractor” pursuant to the terms of Section 72-1316(4), Idaho Code. For the purposes of that section and these rules, an independent contractor is a worker who meets the requirements of both Sections 72-1316(4)(a) and (b), Idaho Code.(3-23-22)

03.Proving Worker Is Free from Control or Direction in His Work. To meet the requirement of Section 72-1316(4)(a), Idaho Code, the alleged employer must prove that a worker has been and will continue to be free from control or direction in the performance of his work, both under his contract of service and in fact. The following factors may be considered in this determination:(3-23-22)

a.Whether the alleged employer has control over the details of the work, the manner, method or mode of doing the work, and the means by which the work is to be accomplished, but without reference to having control over the results of the work.(3-23-22)

b.The freedom from direction and control must exist in theory (under a contract of service) and in fact; and(3-23-22)

c.The employer must demonstrate that it lacked a right to control the worker.(3-23-22)

04.Proving Worker Is Engaged in Independently Established Business. To meet the requirement of Section 72-1316(4)(b), Idaho Code, it must be proven that a worker is engaged in an independently established trade, occupation, profession or business. The following factors are significant and shall be considered in making this determination, although no single factor is regarded as controlling:(3-23-22)

a.The level of skill required to perform the work;(3-23-22)

i.A worker who performs routine tasks requiring little or no training is indicative of the worker’s status as an employee.(3-23-22)

ii.A worker who performs work requiring skills marketable as a trade, occupation, profession or business, such as an electrician, attorney, physician, or CPA, is indicative of the worker’s status as an independent contractor.(3-23-22)

iii.A worker who performs work requiring special licensing or compliance with regulatory requirements is indicative of the worker’s status as an independent contractor.(3-23-22)

iv.A worker who receives all or substantially all of the worker’s job training from the alleged employer is indicative of the worker’s status as an employee.(3-23-22)

b.The extent to which the worker’s services are an integral part of the alleged employer’s business;

i.A worker who performs the primary type of work that the alleged employer is in business to provide to its customers or clients is indicative of the worker’s status as an employee. For example, an automotive repair business hires an additional mechanic to help in its service repair shop. Since the work provided by the worker is the primary type of work the automotive repair business provides to its customers, the work is indicative of the worker’s status as an employee.(3-23-22)

ii.A worker who performs a specific job that is secondary to an integral part of the employer’s business is indicative of the worker’s status as an independent contractor. For example, if a manufacturing business requiring routine electrical work within its manufacturing facility hires an independent electrical company to provide that service, the electrical work performed is indicative of the worker’s status as an independent contractor. (3-23-22)

iii.A worker who supervises the alleged employer’s employees is indicative of the worker’s status as an employee.(3-23-22)

iv.If the success of a business depends to an appreciable degree upon the performance of certain services , the worker performing those services is indicative of that worker’s status as an employee.(3-23-22)

v.If a worker is not required to work solely for the alleged employer and there is a separate contractual relationship for each job that ends upon the completion of that job, the work is indicative of the worker’s status as an independent contractor.(3-23-22)

c.The permanency of the relationship;(3-23-22)

i.The longer a worker works solely for a single alleged employer, the more indicative it is of the worker’s status as an employee.(3-23-22) iiA worker who makes the worker’s services available to the general public for hire on a regular and consistent basis is indicative of the worker’s status as an independent contractor.(3-23-22)

iii.A worker whose hours worked are regularly scheduled, rather than sporadic or occasional, is indicative of the worker’s status as an employee.(3-23-22)

iv.Work with a specific ending date that ends the working relationship between the worker and the alleged employer is indicative of the worker’s status as an independent contractor.(3-23-22)

v.Work that is open ended allowing the worker to continue working for the same alleged employer as long as performance standards are met, is indicative of the worker’s status as an employee.(3-23-22)

d.A worker’s investment in facilities and equipment;(3-23-22)

i.A worker who is reimbursed for work-related purchases, materials or supplies, or is furnished work-related materials or supplies by the alleged employer is indicative of the worker’s status as an employee.

ii.A worker who uses the tools and equipment of the alleged employer is indicative of the worker’s status as an employee.(3-23-22)

iii.A worker’s significant investment in tools and equipment compared to the cost of the tools and equipment provided by the alleged employer is indicative of the worker’s status as an independent contractor.

iv.A worker who is financially responsible to the alleged employer for damage to equipment or tools is indicative of the worker’s status as an independent contractor.(3-23-22)

v.A worker’s investment in physical facilities used by the worker in performing services is indicative of the worker’s status as an independent contractor.(3-23-22)

vi.A worker’s lack of investment in physical facilities indicating a dependence on the alleged employer for whom the worker’s services are performed is indicative of the worker’s status as an employee.

e.Whether a worker is customarily engaged in an outside trade, occupation, profession, or business providing the same type of services the worker provides for the alleged employer engaging his services;(3-23-22)

i.A worker who provides one (1) type of service for an alleged employer, while providing the same type of service to others for hire, is indicative of the worker’s status as an independent contractor.(3-23-22)

ii.A worker who provides one (1) type of service for an alleged employer, while providing a different type of service to others for hire, is indicative of the worker’s status as an employee of the alleged employer.

iii.A worker who advertises independently via yellow pages, business cards, web pages, or other types of media is indicative of the worker’s status as an independent contractor.(3-23-22)

f.A worker’s opportunities for profit and loss;(3-23-22)

i.A worker required to carry business related expenses such as insurance, bonding, or workers compensation coverage is indicative of the worker’s status as an independent contractor.(3-23-22)

ii.A worker’s ability to earn a profit by performing work more efficiently or suffer a loss because of the work performed is indicative of the worker’s status as an independent contractor.(3-23-22)

iii.A worker who is subject to a risk of economic loss due to significant investments or a bona fide liability for expenses is indicative of the worker’s status as an independent contractor.(3-23-22)

g.Other factors when viewed fairly in light of all the circumstances that may or may not indicate that the worker was engaged in an independently established trade occupation, profession, or business. These factors may include control of the premises, right to determine hours, or who sets the rate of pay.(3-23-22)

05.Meeting Criteria for Covered Employment. A worker who meets one (1), but not both, of the tests in Subsections 112.03 and 112.04 above shall be found to perform services in covered employment.(3-23-22)

06.Evidence of Contractual Liability for Termination. For purposes of making a determination under Section 72-1316(4), Idaho Code, and this regulation, the party alleging that summary termination by either party would result in contractual liability must present some evidence upon which to base such allegation. Ref.

Section 72-1316(4), Idaho Code.(3-23-22)

IDAPA 09.01.35.113 (Reserved)

IDAPA 09.01.35.166 Field Operations Control

When circumstances dictate, and as a result of nonpayment of liabilities, the employer shall be notified by mail to the last known address of lien proceedings against the employer's interests, with an explanation of the amounts due, and the accrual of interest at the proper rate until the lien is satisfied. Ref. Section 72-1360, Idaho Code.(3-23-22)

01.Execution Against Assets. The Department of Labor, when the situation warrants, shall levy upon or execute against any real or personal property, both tangible and intangible, in which an indebted person has an interest, including any offsets as allowed by Section 67-1026, Idaho Code. Ref. Section 72-1360, Idaho Code.

02.Relief of Indebtedness. Neither the full running of the statute of limitations nor the writing off of the account as uncollectible relieves an employer of tax indebtedness. Ref. Section 72-1364, Idaho Code. (3-23-22)

IDAPA 09.01.35.167 (Reserved)