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House Engrossed |
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State of Arizona House of Representatives Fiftieth Legislature Second Regular Session 2012
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HOUSE BILL 2150 |
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AN ACT
Amending sections 23-613.01, 23-671 and 23-724, Arizona Revised Statutes; relating to employment security.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 23-613.01, Arizona Revised Statutes, is amended to read:
23-613.01. Employee; definition; exempt employment
A. "Employee" means any individual who performs services for an employing unit and who is subject to the direction, rule or control of the employing unit as to both the method of performing or executing the services and the result to be effected or accomplished. , Indications of control by the employing unit include controlling the individual's hours of work, location of work, right to perform services for others, tools, equipment, materials, expenses and use of other workers and other indicia of employment, except employee does not include:
1. An individual who performs services as an independent contractor, business person, agent or consultant, or in a capacity characteristic of an independent profession, trade, skill or occupation.
2. An individual subject to the direction, rule or control or subject to the right of direction, rule or control of an employing unit solely because of a provision of law regulating the organization, trade or business of the employing unit.
3. An individual or class of individuals that the federal government has decided not to and does not treat as an employee or employees for federal unemployment tax purposes.
4. An individual if the employing unit demonstrates the individual performs services in the same manner as a similarly situated class of individuals that the federal government has decided not to and does not treat as an employee or employees for federal unemployment tax purposes.
B. Notwithstanding this section, an individual or class of individuals shall not be treated as an employee by the department for purposes of this chapter if, before the department's determination that the individual or class of individuals at issue is an employee:
1. The individual or class of individuals had been performing services for the employing unit.
2. The department had inspected work records of the employing unit for time periods that the individual or class of individuals had been performing these services.
3. The individual or class of individuals at issue was not included on the contribution and wage reports of the employing unit.
4. After its inspection the department concluded in writing provided to the employing unit that either:
(a) No change or changes in the inspected reports were necessary.
(b) The individual or class of individuals in question did not constitute an employee for purposes of this chapter.
5. At no time between the date of the written determination prescribed in paragraph 4 of this subsection, and the department's subsequent conclusion that the individual or class of individuals at issue constitutes an employee, did the department notify the employing unit in writing that the individual or class of individuals at issue now constitutes an employee for purposes of this chapter.
C. Subsection B of this section shall not apply if either:
1. There has been a substantial and material change in the facts upon which the writing required by subsection B, paragraph 4 of this section was based.
2. The conclusion reached by the department pursuant to subsection B, paragraph 4 of this section was the result of false statements, misrepresentation, fraud or intimidation on the part of the employing unit.
D. The following services are exempt employment under this chapter, unless there is evidence of direction, rule or control sufficient to satisfy the definition of an employee under subsection A of this section, which is distinct from any evidence of direction, rule or control related to or associated with establishing the nature or circumstances of the services considered pursuant to this subsection:
1. Services which are not a part or process of the organization, trade or business of an employing unit and which are performed by an individual who is not treated by the employing unit in a manner generally characteristic of the treatment of employees.
2. Services performed by an individual for an employing unit through isolated or occasional transactions, regardless of whether such services are a part or process of the organization, trade or business of the employing unit.
E. Notwithstanding this section, an individual or class of individuals determined to be an employee or employees for purposes of the federal unemployment tax act, as amended (26 United States Code sections 3301 through 3311), are employees under this chapter.
F. Notwithstanding any other provision of this chapter, this section shall apply to an employing unit to which the provisions of section 23‑750 apply only to the extent not inconsistent with the requirements of 26 United States Code sections 3304 (A)(6) (a)(6) and 3309.
Sec. 2. Section 23-671, Arizona Revised Statutes, is amended to read:
23-671. Appeal tribunals
A. The department shall establish one or more impartial appeal tribunals to hear and decide disputed claims. Such appeal tribunals shall consist in each case of one member who shall be a salaried examiner selected on a nonpartisan merit basis. A person shall not participate on behalf of the department in any case in which he is an interested party.
B. Within a reasonable time before the date set for a hearing, any interested party to a hearing before the appeal tribunal may file an affidavit for change of appeal tribunal and the department shall immediately transfer the matter to another appeal tribunal. An interested party may electronically file the affidavit for change of appeal tribunal under this subsection. Reasonable time shall be established by regulation. Except for cause not more than one change of appeal tribunal shall be granted to any one party.
C. An appeal tribunal may refer any case before it or any question involved therein to the appeals board established pursuant to section 23‑672.
D. Unless an appeal is withdrawn or the proceedings are removed or referred to the appeals board, an appeal tribunal, after giving reasonable notice and affording all interested parties reasonable opportunity for a fair hearing, shall make a decision. The parties to the appeal shall be promptly notified of the decision and the reasons for the decision. The decision shall become final unless within fifteen thirty days after mailing or electronic transmission of the decision any interested party files a written or electronically transmitted petition for review with the appeals board or the appeals board assumes jurisdiction in accordance with subsection E of this section.
E. Before the date on which an appeal tribunal decision becomes final, the appeals board on its own motion may, by notice mailed to all interested parties, either:
1. Set aside the decision of the appeal tribunal and remand the proceedings to another appeal tribunal for review and decision.
2. Order the taking of additional evidence.
3. Remove the proceedings to itself for review and decision.
F. If the appeals board removes a case to itself pursuant to this section, the appeals board may order the taking of additional evidence and may affirm, reverse, modify or set aside the decision of the appeal tribunal. The appeals board shall promptly notify the parties to the proceedings of its decision.
Sec. 3. Section 23-724, Arizona Revised Statutes, is amended to read:
23-724. Liability determinations; review; finality
A. When the department makes a determination, which determination shall be made either on the motion of the department or on application of an employing unit, that an employing unit constitutes an employer as defined in section 23‑613 or that services performed for or in connection with the business of an employing unit constitute employment as defined in section 23‑615 that is not exempt under section 23‑617 or that remuneration for services constitutes wages as defined in section 23‑622, the determination shall become final with respect to the employing unit fifteen sixty days after written notice is served personally, by electronic transmission or by certified mail if the determination was made on the basis of section 23‑613.01, or by first class mail if the determination was made by any OTHER BASIS, addressed to the last known address of the employing unit, unless within such time the employing unit files a written request for reconsideration.
B. When a request for reconsideration is filed as prescribed in subsection A of this section, a reconsidered determination shall be made. The reconsidered determination shall become final with respect to the employing unit thirty days after written notice of the reconsidered determination is served personally, by electronic transmission or by mail addressed to the last known address of the employing unit, unless within such time the employing unit files with the appeals board a written petition for hearing or review. The department may for good cause extend the period within which the written petition is to be submitted. If the reconsidered determination is appealed to the appeals board and the decision by the appeals board is that the employing unit is liable, the employing unit shall submit all required contribution and wage reports to the department within forty‑five days after the decision by the appeals board.
C. On an employer's written request and the submission of pertinent information to the department, the department shall, or on its own motion may, consider whether a determination, reconsidered determination or decision which has become final should be revised. Revision shall be granted if either:
1. There has been a substantial and material change in the facts on which the determination, reconsidered determination or decision relied.
2. There has been a change in the law or interpretation of the law which warrants a revised determination, reconsidered determination or decision.
D. The effective date of a revision under subsection C of this section is either:
1. The date on which the change occurred if the employer's request with the pertinent information is filed no later than the last day of the month immediately subsequent to the calendar quarter in which the change occurred.
2. The first day of the calendar quarter in which the employer files the request and submits the pertinent information unless the employer demonstrates to the satisfaction of the department that good cause exists for the failure to notify the department within the period prescribed by paragraph 1 of this subsection of the occurrence of the change warranting the revision. In the event such good cause is demonstrated, the effective date shall be the date of the change.
E. A refusal to grant relief under subsection C of this section may not be appealed unless within fifteen thirty days the employer appeals the refusal to the appeals board. Notwithstanding any other provision of law and pursuant to such an appeal, the appeals board may initiate hearings to obtain information and issue a decision as to whether the relief requested in subsection C of this section should be granted. Thereafter, the appeals board shall issue a decision in the matter. The decision may not be appealed with respect to the employing unit unless petition for review and request for review are filed within the time and in the manner provided in section 23‑672.
F. The determination of the department or decision of the appeals board, together with the record, shall be admissible in any subsequent judicial proceeding involving liability for contributions. A determination or decision that an employing unit is liable that has become final shall be conclusive and binding on the employing unit and shall not be reconsidered in proceedings brought before the department or a hearing officer.
G. Any determination issued on the basis of section 23‑613.01 pursuant to subsection A of this section and Any reconsidered determination issued pursuant to subsection B of this section and any contribution rate redetermination or denial issued pursuant to section 23‑732, subsection A shall contain the following:
1. The facts considered and the facts relied on in making the determination.
2. The specific statutes, regulations or other authority relied on in making the determination.
3. The reasoning applied in making the determination.
4. The appeal rights related to the determination and the time period after which the determination becomes final.
H. If any determination covered by subsection G of this section is defective because it fails to meet the requirements of subsection G of this section, the defect may be cured by issuance of a corrected, amended or new determination. If a defect is alleged and specified in writing within the period for appeal, all time periods applicable to the determination are suspended pending the curative action.
I. This section does not preclude the department from at any time correcting clerical errors that have occurred in the administration of this chapter.
J. A determination, reconsidered determination, revision or refusal to grant relief under this section may be served by electronic means if the party being served consents in writing to service by electronic means. Service by electronic means is deemed complete on transmission.