Rules of the Oklahoma Employment Security Commission

              Rules for the
Administration of the
Oklahoma Employment
Security Act
JUNE 2011
STATE OF OKLAHOMA
Mary Fallin, Governor
Richard McPherson, Executive Director
OES-128 (Rev.6-11) RULES
of the
OKLAHOMA EMPLOYMENT SECURITY COMMISSION
2401 North Lincoln Boulevard
Will Rogers Memorial Office Building
Oklahoma City, Oklahoma 73105-4495
(Codified 2-12-91)
These rules were adopted by the Oklahoma Employment Security Commission pursuant to the Oklahoma Administrative Procedures Act, 75 O.S §§250 et seq..
The rules in this document are NOT the official rules of the Oklahoma Employment Security Commission. The official text is the text accepted by the Secretary of State for publication in the Oklahoma Administrative Code. The official rules are on file in the Office of Administrative Rules of the Oklahoma Secretary of State. They are also available at the Secretary of State's web site at: https://www.sos.ok.gov/oar/online/viewCode.aspx
The Oklahoma Employment Security Commission has tried to make sure the text of the rules in this book are the same as the text on file in the Office of Administrative Rules of the Secretary of State. Any differences will be decided in favor of the text on file in the Office of Administrative Rules of the Secretary of State.
This publication is issued by the Oklahoma Employment Security Commission as authorized by the Oklahoma Employment Security Act. Fifteen hundred copies have been prepared and distributed at an approximate cost of $1,750.00 and paid for out of the federal funds granted by the U.S.Department of Labor to said Commission.
The rules are also available at: http://www.ok.gov/oesc_web/documents/2011_Rules.pdf
OES-128 (Rev. 6-2011) INTRODUCTION
This book contains the Oklahoma Employment Security Commission Rules. These rules are also called the OESC Rules.
THE NUMBERING SYSTEM
A section number is a number assigned to an individual rule. An example of a section number is 240:10-1-2. In this example:
240:10-1-2
"240" is the Title number assigned to the Oklahoma Employment Security Commission by the Editor of the Oklahoma Register. Each agency in the state is identified by a different title number.
240:10-1-2
"10" refers to Chapter 10. Chapters identify major areas of regularity control within the agency's authority.
240:10-1-2
"1" refers to Subchapter 1 of Chapter 10. A Subchapter contains a group of Sections related to the same general subject. Some Subchapters are further divided into "Parts" which are groups of related Sections. The numbers initially assigned to Subchapters and Parts are all odd numbers: 1, 3, 5, etc. This is to save space for future expansion.
240:10-1-2
"2" refers to Section 2 of Subchapter 1. a Section is an individual rule.
Section Subdivision Letters and Numbers: Individual sections (rules) may be subdivided according to the following structure:
A subsection is designated by a lower-cased letter of the alphabet enclosed in parentheses [e.g., (a), (b), (c)].
A paragraph is designed by an Arabic numeral enclosed in parentheses [e.g., (1), (2), (3)].
A subparagraph is designated by an upper-cased letter of the alphabet enclosed in parentheses [e.g., (A), (B), (C)].
A unit is designated by a lower-cased roman numeral enclosed in parentheses [e.g., (I), (ii), (iii)].
A subunit is designated by an upper-cased roman numeral enclosed in parentheses [e.g., (I), (II), (III)].
TITLE 240 TABLE OF CONTENTS
*NEW ADDITIONS/AMENDMENTS EFFECTIVE 6-2011
CHAPTER 1. GENERAL PROVISIONS
Subchapter 1. General Provisions
240:1-1-1 Purpose ……………………………………………………………... 1
*240:1-1-2 Definitions [Amended 5-12-11].…………………........................... 1
240:1-1-3 Organization of Commission ……………………………………….. 2
240:1-1-4 Authority ……………………………………………………………. 2
240:1-1-5 Offices of Commission ……………………………………………... 2
240:1-1-6 Petitions to promulgate, amend or repeal rules ……………………... 2
240:1-1-7 Petitions for declaratory rulings ………………….............................. 2
Subchapter 3. Records and Inspections
240:1-3-1 Location of records …………………………………………………. 4
240:1-3-2 Non-confidential records ………………………………………….. 4
240:1-3-3 Confidential records ………………………………………………… 4
240:1-3-4 Copies ………………………………………………………………. 5
240:1-3-5 Charges ……………………………………………………………... 5
240:1-3-6 Search fees ………………………………………………………….. 6
240:1-3-7 Receipt of requests………………………………………………….. 6
240:1-3-8 Notices to requesters..............................................................................6
*240:1-3-9 Release of confidential information to specific government agencies
[Added 5-12-11].....................................................................................7
Subchapter 5. Local Project Funding
240:1-5-1 Purpose………………………………………………………………. 9
240:1-5-2 Definition ..............................................................................................9
240:1-5-3 Local project funding announcement.....................................................9
240:1-5-4 Evaluation of local project funding contract application.....................10
240:1-5-5 Affidavit of LPF officer.......................................................................11
240:1-5-6 Serial numbering of local project funding contract.............................11
240:1-5-7 Monitoring of local project funding contracts ....................................11
CHAPTER 5. EMPLOYMENT SERVICE
Subchapter 1. General Provisions
240:5-1-1 Purpose ................................................................................................12
240:5-1-2 Definitions [Reserved]
Subchapter 3. Internet Use
240:5-3-1 Internet user registration .....................................................................12
240:5-3-2 Time limit on Internet use ...................................................................12
240:5-3-3 Internet user prohibitions ....................................................................12
240:5-3-4 Penalties for violations ........................................................................13
CHAPTER 10. UNEMPLOYMENT INSURANCE PROGRAM
Subchapter 1. General Provisions
240:10-1-1 Purpose ..................................................................................................14
*240:10-1-2 Definitions [Amended 6-15-2011].........................................................14
240:10-1-3 Time computation....................................................................................17
Subchapter 3. Benefits
Part 1. General Provisions
240:10-3-1 Purpose ………………………………………………………………..18
240:10-3-2 Claimant’s notification of change of address ............………………… 18
Part 3. Computation
240:10-3-10 Approved training...........…………………..................................…..... 18
240:10-3-11 Priority of deductions from unemployment insurance benefits …… 19
240:10-3-12 Payments of benefits.…………......……...................................…....…19
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TITLE 240 TABLE OF CONTENTS
Part 5. Eligibility
240:10-3-20 Instructions to secure work …………………………………………...20
240:10-3-21 Reasonable assurance ……………………………………………..….21
240:10-3-22 Claims for benefits ……………………………………………………21
*240:10-3-23 Claims for total unemployment benefits [Amended 6-15-2011].......... 21
240:10-3-24 Claims for partial unemployment benefits ……………………………22
240:10-3-25 Payment of claim of deceased worker ……………………………..... 25
240:10-3-26 Payment of benefits to interstate claimants …………………………..26
240:10-3-27 Social Security account numbers ……………………………………..27
240:10-3-28 Application of payments made to repay an overpayment of benefits ………………………………………………27
*240:10-3-29 Employer leave due to illness or disability [Added 6-15-2011]............28
Part 7. Protection of Rights and Benefits
240:10-3-30 Notice to claimants of income tax
withholding program ………………………………………...……….28
240:10-3-31 Amounts deducted held in Unemployment Trust Fund ……………..29
240:10-3-32 Federal procedures followed ………………………………………...29
240:10-3-33 Priorities of deductions from benefits [Revoked] …………………...29
240:10-3-34 Calculation of deductions ……………………………………………29
240:10-3-35 Personal identification numbers …………………………………..…29
Part 9. Disqualification
240:10-3-40 Normal working day [Revoked] ……………………………….……..29
240:10-3-41 Application of retirement proceeds and severance pay ……………....30
240:10-3-42 Labor disputes ………………………………………………………...30
240:10-3-43 Performed service and earned remuneration; reemployed and has
earned wages ………………………………………………………….31
240:10-3-44 Domestic violence or abuse [Revoked]...................…………………31
240:10-3-45 Cases involving positive drug or alcohol tests……………………….31
Part 11. Filing Claims - Notice
240:10-3-50 Employers who shall receive a notice of determination …………….32
240:10-3-51 Information to be posted ........................................ …………………32
240:10-3-52 Information to separated workers ……………………………………32
240:10-3-53 Third party administrators-filing requirements ..…………………….32
Part 12. Interest Waiver for Benefit Overpayments
240:10-3-60 Definitions............................................................................................33
240:10-3-61 Filing a request for waiver...................................................................33
240:10-3-62 Three year limitation, assessment of penalty & accrual of interest.....33
240:10-3-63 Request letter ...................................................................................... 33
240:10-3-64 Initial determination.............................................................................34
240:10-3-65 Appeal of initial determination ...........................................................34
240:10-3-66 Jurisdiction and authority of Appeal Tribunal.....................................35
240:10-3-67 Appeal Tribunal hearing .....................................................................35
240:10-3-68 Appeal .................................................................................................35
240:10-3-69 Waiver to be denied ............................................................................35
Part 13. Appeals [Reserved]
Part 15. Extended Benefits [Reserved]
Part 17. Child Support [Reserved]
Subchapter 5. Contributions
Part 1. General Provisions
240:10-5-1 Purpose ..................................................................................................36
240:10-5-2 Definitions .............................................................................................36
240:10-5-3 Notice of change of address, organization or ownership .....................36
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TITLE 240 TABLE OF CONTENTS
240:10-5-4 Surety bond for lessor employing units ...............................................36
240:10-5-5 Coverage of Indian tribes (Expired Emergency Rule) ..........................37
Part 3. Rates
240:10-5-10 Payment of contributions ......................................................................38
240:10-5-11 Subject employer acquiring the experience rating account of
employers ..............................................................................................38
240:10-5-12 Non-subject employers acquiring the experience rating account of
Employers ..............................................................................................39
240:10-5-13 Experience rating contribution rates - appeal ........................................39
240:10-5-14 Experience rating - date of benefit payments ........................................39
*240:10-5-15 Successor acquiring the experience rating account of predecessor ......40
[Amended 6-15-2011]
240:10-5-16 Recall credit ..........................................................................................41
240:10-5-17 Relief from benefit wage charges - disasters ........................................41
240:10-5-18 Tax Rate Information-Third Party Administrators...................................41
Part 5. Period, Termination, Election [Reserved]
Part 7. Collection of Contributions
240:10-5-30 Jeopardy assessments security defined .................................................42
240:10-5-31 Claims for refund - procedure ........................................................... 42
240:10-5-32 Application of payments to delinquent tax indebtedness.......................42
240:10-5-33 Application of payments to Computer Assessment Fund .....................43
Part 8. Waiver of Penalty and Interest
240:10-5-40 Definitions .............................................................................................43
240:10-5-41 Filing a request for waiver ....................................................................44
240:10-5-42 Three year limitation, assessment of penalty and accrual of interest ....44
240:10-5-43 Request letter .........................................................................................45
240:10-5-44 Initial determination...............................................................................45
240:10-5-45 Appeal of initial determination..............................................................45
240:10-5-46 Jurisdiction and authority of Assessment Board ...................................46
240:10-5-47 Assessment Board hearing ....................................................................46
240:10-5-48 Judicial review ......................................................................................46
240:10-5-49 Waiver to be denied ..............................................................................46
Part 9. Judicial Review [Reserved]
Part 11. Warrants
240:10-5-60 Tax warrant filing fees ..........................................................................47
240:10-5-61 Sheriff service fees for tax warrants ......................................................47
Part 13. Unemployment Compensation Fund [Reserved]
Part 15. Financing Benefits to Employees of the State
240:10-5-70 Termination of individual reimbursing employers ...............................48
240:10-5-71 Group accounts ......................................................................................49
Part 17. Financing Benefits to Employees of Nonprofit Organizations
240:10-5-80 Establishment of group accounts for state, local governments and
nonprofit organizations ....................................................................... 49
Part 19. Maintenance and Production of Work Records
240:10-5-90 Records...................................................................................................52
*240:10-5-91 Employer’s Quarterly Contribution Wage Reports
[Amended 6-15-2011]............................................................................54
240:10-5-92 Industrial classification statement .........................................................55
240:10-5-93 Lessor employing unit reports ...............................................................55
240:10-5-94 Multiple worksite reports ......................................................................55
240:10-5-95 Occupational employment statistics survey ..........................................55
*240:10-5-96 Application for Oklahoma UI Tax account number[Added 6-15-2011] 56
Part 21. Reciprocal Arrangement
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TITLE 240 TABLE OF CONTENTS
240:10-5-100 Employer elections to cover interstate workers ………………………56
Subchapter 7. Administration
Part 1. General Provisions
240:10-7-1 Purpose [Revoked] ……………………………………………………59
Part 3. Commission [Reserved]
Part 5. Board of Review
240:10-7-20 Board of Review appeals and procedure [Revoked] ………………….59
Subchapter 9. Penalties and Representation
Part 1. General Provisions [Reserved]
Part 3. Penalties
240:10-9-10 Willful violation of Act ……………………………………………….59
Part 5. Representation [Reserved]
Subchapter 11. Assessment Board Procedure
Part 1. General Provisions
240:10-11-1 Purpose ………………………………………………………………..60
240:10-11-2 Definitions [Reserved]
240:10-11-3 Organization …………………………………………………………..60
240:10-11-4 Quorum [Revoked] …………………………………………………...60
240:10-11-5 Jurisdiction …………………………......................................…......... 60
240:10-11-6 Address of Board.............................................………………………... 62
240:10-11-7 Address of Appellant …………………………………………………62
240:10-11-8 Judicial ethics ………………………………………………………...62
Part 3. Appeals to Assessment Board
240:10-11-11 Filing of protests …………………………………………………….62
240:10-11-12 Timeliness of filing – jurisdiction …………………………………...63
Part 5. Hearings
*240:10-11-20 Notice of hearings [Amended 6-15-2011] ……………………...63
240:10-11-21 Continuances and rescheduled hearings …………………………….63
*240:10-11-22 Conduct of hearings [Amended 6-15-2011] …………………..….....63
240:10-11-23 Telephone hearings ………………………………………………….64
240:10-11-24 Good cause .....................................……………………………… …..64
*240:10-11-25 Motion to reopen after failure to appear [Amended 6-15-2011]...... 65
240:10-11-26 Cameras ..............................................................................................65
Part 7. Witnesses and Subpoenas
240:10-11-30 Subpoenas …………………………………………………………….65
240:10-11-31 Witness fees and expenses …………………………………………..66
Part 9. Records of Assessment Board [Reserved]
Part 11. Appeals to District Court
240:10-11-50 Intent to appeal notice [Revoked] ……………………………………66
240:10-11-51 Petition for review …………………………………………………...67
240:10-11-52 Payment of assessment or bond ………………………��…………..67
Subchapter 13. Appeal Tribunal Procedure
Part 1. General Provisions
240:10-13-1 Purpose ………………………………………………………………67
240:10-13-2 Definitions [Reserved]
240:10-13-3 Authority …………………………………………………………….67
240:10-13-4 Organization ………………………………………………………... 67
240:10-13-5 Jurisdiction …………………………………................................... 68
240:10-13-6 Administrative review ……………………………………………… 68
240:10-13-7 Disqualification of hearing officer ....................................…………....68
240:10-13-8 Address of Appeal Tribunal..................................................................69
240:10-13-9 Judicial ethics ………………………………………………………..69
Part 3. Appeals to Appeal Tribunal
240:10-13-20 Filing an appeal .....................................................................................69
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TITLE 240 TABLE OF CONTENTS
240:10-13-21 Notice of appeal ……………………………………………………..70
240:10-13-22 Date filed …………………………………………………………….70
Part 5. Hearings
240:10-13-30 Case assignment ……………………………………………………..70
240:10-13-31 Location ……………………………………………………………..70
240:10-13-32 Telephone hearings ………………………………………………….70
*240:10-13-33 Notices of hearing[Amended 6-15-2011]......................……………71
240:10-13-34 Content ………………………………………………………………71
240:10-13-35 Commission-party ……………………………………………………71
240:10-13-36 Change of address ……………………………………………………71
240:10-13-37 Good cause...................................…………………………………......71
240:10-13-38 Continuances ………………………………………………………...72
240:10-13-39 Nonappearance ....................................................................................72
*240:10-13-40 Reopen [Amended 6-15-2011]........................................................... 72
240:10-13-41 Withdrawal …………………………………………………………..73
*240:10-13-42 Conduct of hearings [Amended 6-15-2011]…………….…………...73
240:10-13-43 Record of hearings …………………………………………………..74
240:10-13-44 Representation at hearings …………………………………………..74
240:10-13-45 Legal fees [Revoked] .....…………………………………………….74
240:10-13-46 Cameras............................................................................................... 74
Part 7. Witnesses and Subpoena
240:10-13-60 Subpoenas ...........................................................................................75
240:10-13-61 Witness fees and expenses …………………………………………..75
Part 9. Records of Appeal Tribunal
240:10-13-70 Transcript of hearings ……………………………………………… 75
240:10-13-71 Requests for copies ………………………………………………… 76
240:10-13-72 Inspection of records ……………………………………………….. 76
240:10-13-73 Decisions …………………………………………………………….76
Part 11. Appeals to Board of Review
240:10-13-80 Appeal rights of interested parties …………………………………..76
240:10-13-81 Certification to Board of Review [Revoked] ………………………..76
CHAPTER 12. TRADE ACT PROGRAMS
Subchapter 1. General Provisions
240:12-1-1 Purpose ………………………………………………………………77
240:12-1-2 Definitions ......................................…………………………………. .77
240:12-1-3 Federal rules …………………………………………………………77
240:12-1-4 Application information ……………………………………………..78
Subchapter 3. Trade Readjustment Allowances [RESERVED]
Subchapter 5. Reemployment Services
240:12-5-1 Approval of training ............................................................................78
240:12-5-2 Subsistence and transportation payments ............................................78
240:12-5-3 Receipts for reimbursement ................................................................78
240:12-5-4 Maximum cost of training [Revoked]..................................................78
240:12-5-5 Usual and customary cost of training ................................................. 78
Subchapter 7. Job Search Allowances
240:12-7-1 Eligibility for allowances ……………………………………………79
240:12-7-2 Information required ……………………………………………….. 79
240:12-7-3 Allowable expenses …………………………………………………79
240:12-7-4 Mode and time of travel ……………………………………………. 79
240:12-7-5 Calculation of mileage ………………………………………………80
240:12-7-6 Receipts for reimbursement …………………………………………80
240:12-7-7 Suitable employment/employment of long-term duration …………..80
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TITLE 240 TABLE OF CONTENTS
240:12-9-1 Information required ...........................................................................80
240:12-9-2 Receipts for reimbursement ................................................................80
240:12-9-3 Suitable employment/employment of long-term duration ..................81
240:12-9-4 Commercial carrier ............................................................................. 81
Subchapter 11. Job Search Program [RESERVED]
Subchapter 13. Administration
240:12-13-1 Determinations/appeals .......................................................................81
CHAPTER 15. BOARD OF REVIEW PROCEDURES
Subchapter 1. General Provisions
240:15-1-1 Purpose ………………………………………………………………82
240:15-1-2 Definitions [Reserved]
240:15-1-3 Board of Review Chairman; Vice-Chairman; quorum ……………...82
240:15-1-4 Clerk of the Board of Review………………………………………..82
240:15-1-5 Attorneys or representative; fees ……………………………………82
240:15-1-6 Hearing officer-conflict of interest…………………………………. 82
240:15-1-7 Attorney fees – approval [Revoked]…................………………….. 83
240:15-1-8 Attorney fees – approval….............................……………………. 83
Subchapter 3. Appeals to the Board of Review
240:15-3-1 Correspondence; stamping; time; mailing ..........................................83
240:15-3-2 Correspondence with Board of Review; address....………………… 83
240:15-3-3 Review of Appeal Tribunal decision ...................................................84
240:15-3-4 Withdrawal of appeal ..........................................................................85
240:15-3-5 Untimely appeals; good cause; notice .................................................85
240:15-3-6 Certification of fact finding and questions of law from
Appeal Tribunal..................................................................................85
Subchapter 5. Hearings [REVOKED]
*240:15-5-1 Request for hearing, new additional evidence [REVOKED]...............86
*240:15-5-2 Hearings; notice; Appeal Tribunal testimony; failure to appear
[REVOKED]........................................................................................86
*240:15-5-3 Continuances [REVOKED]...............................................................86
*240:15-5-4 Recording hearings [REVOKED]......................................................86
*240:15-5-5 Cameras [REVOKED]........................................................................86
Subchapter 7. Witnesses and Subpoena
*240:15-7-1 Attendance at hearing [Amended 5-12-2011] ...................................86
Subchapter 9. Records of the Board of Review
240:15-9-1 Inspection of records ...........................................................................86
*240:15-9-2 Board of Review records [Amended 5-12-2011] ................................86
Subchapter 11. Appeals to District Court
*240:15-11-1 Board of Review decision; appeal to district court
[Amended 5-12-2011]..........................................................................87
CHAPTER 20. JOB TRAINING PARTNERSHIP PROGRAM [REVOKED]
CHAPTER 21. WORKFORCE INVESTMENT ACT
Subchapter 1. General Provisions
240:21-1-1 Purpose ................................................................................................89
240:21-1-2 Definitions..............................................................................................89
240:21-1-3 Addresses for appeals ............................................................................90
Subchapter 3. Denial or Termination of Eligibility of a Training Provider
240:21-3-1 Reporting – termination ........................................................................91
240:21-3-2 Notice to the training provider ..............................................................91
240:21-3-3 Appeal ...................................................................................................91
240:21-3-4 Hearing ..................................................................................................91
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TITLE 240 TABLE OF CONTENTS
240:21-3-5 District court appeal ..............................................................................92
240:21-3-6 Administrative record ............................................................................92
Subchapter 5. Denial of Request for Designation as a Local Workforce Investment Area [REVOKED]
240:21-5-1 Appeal [REVOKED].............................................................................92
240:21-5-2 Appeal time [REVOKED].....................................................................92
240:21-5-3 Hearing [REVOKED]............................................................................92
240:21-5-4 Decision [REVOKED]...........................................................................92
240:21-5-5 Appeal of decision [REVOKED]...........................................................92
Subchapter 7. Monitoring
240:21-7-1 Monitoring..............................................................................................92
240:21-7-2 Monitoring report....................................................................................93
240:21-7-3 Monitoring resolution & initial monitoring determination ....................93
240:21-7-4 Final monitoring determination...............................................................94
240:21-7-5 Appeal.....................................................................................................95
240:21-7-6 Hearing....................................................................................................95
Subchapter 9. Audits
240:21-9-1 Audit requirements..................................................................................96
*240:21-9-2 Delinquent audit [Amended 5-12-2011] ................................................97
240:21-9-3 Audit resolution .....................................................................................97
240:21-9-4 Audit review and request for information .............................................97
240:21-9-5 Initial determination ..............................................................................98
240:21-9-6 Final determination ...............................................................................99
240:21-9-7 Appeal ...................................................................................................99
240:21-9-8 Hearing ..................................................................................................99
Subchapter 11. Grievance Procedure
Part 1. General Provisions
240:21-11-1 Grievances ...........................................................................................100
Part 3. Grievances Filed Directly with the OESC
240:21-11-10 Filing ..................................................................................................100
240:21-11-11 Time limit for filing a grievance with OESC ......................................100
240:21-11-12 Contents of a grievance .......................................................................101
240:21-11-13 Referral of a grievance filed with OESC ............................................101
Part 5. Appeals to the OESC from Grievance Decisions of a Local Area
240:21-11-20 Filing grievance with local area ..........................................................101
240:21-11-21 Appeals with OESC ............................................................................101
240:21-11-22 Time limit for filing an appeal with OESC ..........................................102
Part 7. Informal and Formal Resolutions of Grievances
240:21-11-30 Informal resolution ..............................................................................102
240:21-11-31 Hearing ...............................................................................................102
240:21-11-32 Remedies .............................................................................................102
240:21-11-33 Appeal to Secretary or investigation by Secretary ..............................103
240:21-11-34 Decision of the Secretary.....................................................................103
CHAPTER 25. TAX EXEMPTIONS FOR QUALIFYING EMPLOYERS
Subchapter 1. General Provisions
240:25-1-1 Purpose ..............................................................................................104
240:25-1-2 Definitions .........................................................................................104
Subchapter 3. Procedural Rules
240:25-3-1 Certification - new employees hired by new or expanding business.104
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TITLE 240 CHAPTER 1. GENERAL PROVISIONS
OKLAHOMA EMPLOYMENT SECURITY COMMISSION
CHAPTER 1 – GENERAL PROVISIONS
SUBCHAPTER 1 – GENERAL PROVISIONS
240:1-1-1. Purpose
(a) Content of Title. Title 240 consists of rules adopted by the:
(1) Oklahoma Employment Security Commission (Commission) and,
(2) Board of Review (Board) for the Oklahoma Employment Security Commission.
(b) Content of chapter. Chapter 1 of Title 240 provides information on the organization, authority and location of the Commission and the procedures for individuals to submit petitions to promulgate, amend or repeal Commission rules.
(c) Commission authority. The Commission adopts rules for all Chapters in OAC Title 240 except "Chapter 15. Board of Review Procedures."
(d) Board authority. The Board of Review has separate rulemaking authority to adopt rules governing the proceedings over which it presides. The Board rules are contained in OAC Title 240, Chapter 15.
240:1-1-2. Definitions
The following words and terms, when used in this Chapter, shall have the following meaning unless the context clearly indicates otherwise:
"Aggregated Data" means statistical data that has been stripped of any information that would identify any particular individual or employer and has been extracted or processed from a sufficiently large population of individuals or employers to insure that the data concerning any specific individual, employer, employee or unemployment benefit claimant cannot be discerned from the information if it is made public, thereby protecting the confidentiality of information maintained by the Oklahoma Employment Security Commission.
"Third Party Administrator" means any entity that contracts with an employer to perform administrative functions on the employer's behalf related to the employer's compliance with any provision of the Employment Security Act of 1980, or any entity that contracts to represent the employer's interests in any protests, appeal or hearing before any division of the Oklahoma Employment Security Commission or the Board of Review. Attorneys licensed to practice law in Oklahoma who represent clients before the Oklahoma Employment Security Commission or the Board of Review shall not be considered third party administrators.
[Source: Added at 25 Ok Reg 1622, eff 6-12-08; Amended at 28 Ok Reg 638, eff 5-12-11]
2011 Rules of the Oklahoma Employment Security Commission
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TITLE 240 CHAPTER 1. GENERAL PROVISIONS
240:1-1-3. Organization of Commission
The Oklahoma Employment Security Commission (Commission) consists of five (5) members, appointed by the Governor, … two of whom shall represent employers, two shall represent employees, and one shall represent the public. The representative of the public shall be the Chairman of the Commission. [40:4-102]
240:1-1-4. Authority
The Oklahoma Employment Security Commission has the power and authority to adopt, amend, or rescind such rules . . . as it deems necessary or suitable [40:4-302] to administer the Oklahoma Employment Security (OES) Act. The Commission shall adopt and, from time to time,may modify and amend rules . . . governing appeals before the Appeals Tribunal of the Commission and its referees, . . . [40:2-607] .
[Source: Amended at 23 Ok Reg 884, eff 5-15-06]
240:1-1-5. Offices of the Commission
The public may obtain information by contacting any of the Commission's local offices located throughout the State, a UI Service Center, or its administrative office located in the Will Rogers Office Building, 2401 North Lincoln Boulevard, P. O. Box 52003, Oklahoma City, OK 73152-2003, telephone number (405) 557-7200.
[Source: Amended at 9 Ok Reg 1831, eff 6-11-92; Amended at 12 Ok Reg 1373, eff 5-26-95; Amended at 24 Ok Reg 1232, eff 5-25-07]
240:1-1-6. Petitions to promulgate, amend or repeal rules
Individuals or organizations who wish to petition the Oklahoma Employment Security Commission to promulgate, amend or repeal a rule must submit a typewritten request to the Executive Director, Oklahoma Employment Security Commission, Will Rogers Office Building, 5th Floor, 2401 North Lincoln Boulevard, P. O. Box 52003, Oklahoma City, OK 73152-2003. Requests must state rule number, purpose of the change and the exact wording for the amendment to the rule. The Executive Director will present such petition at the next regularly scheduled meeting of the Oklahoma Employment Security Commission for consideration and disposition.
[Source: Amended at 9 Ok Reg 1831, eff 6-11-92; Amended at 12 Ok Reg 1373, eff 5-26-95; Amended at 16 Ok Reg 1176, eff 5-13-99]
240:1-1-7. Petitions for declaratory rulings
(a) Pursuant to the Administrative Procedures Act, 75 O.S. §307, individuals or organizations may file a Petition for Declaratory Ruling with 2011 Rules of the Oklahoma Employment Security Commission
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the Oklahoma Employment Security Commission to obtain a determination on the applicability of any rule or order of the agency.
(b) The Petition for Declaratory Ruling shall include the following:
(1) Name, address, and telephone number of the individual or organization filing the Petition.
(2) Identification of the agency rule or order that the petitioner wishes to have a determination on.
(3) A short and plain statement of why the declaratory ruling is necessary, the facts that instigated the petition, the outcome the petitioner wishes to achieve, and any prior agency determinations that may be affected by the declaratory ruling requested.
(4) The petition must be signed by the individual, or the chief executive officer of the organization filing it. If the individual or organization is represented by an attorney or representative, that person may sign the petition on behalf of the filing party. The attorney or representative must print his or her full name, address, telephone number, fax number, and e-mail address on the petition.
(c) The petition shall be filed with the Director of Appeals, Oklahoma Employment Security Commission, P.O. Box 53345, Oklahoma City, OK 73152-3345.
(d) Procedure:
(1) All declaratory rulings requested for rules and procedures concerning the administration of claims for unemployment benefits pursuant to Article II of the Employment Security Act of 1980 shall be heard by the Appeal Tribunal of the Oklahoma Employment Security Commission. All rules and statutes regarding hearings and appeals of unemployment benefit claims will apply to the hearing, determination, and appeal of these petitions.
(2) All petitions for declaratory rulings on all rules and procedures of the Oklahoma Employment Security Commission, other than those covered by subsection (d)(1) of this rule, shall be heard by the Assessment Board of the Oklahoma Employment Security Commission. All rules and statutes regarding hearings of the Assessment Board and appeals of Assessment Board determinations will apply to the hearing, determination, and appeal of these petitions.
(e) The petition for declaratory ruling shall be docketed and assigned a hearing officer according to the procedures of the Appellate Division. The hearing officer may require briefs from the petitioning party or the Oklahoma Employment Security Commission or both. Any person or entity wishing to file an Amicus Curiae brief must file a motion with the Appellate Division requesting to do so. Amicus Curiae briefs may be allowed by order, at the discretion of the hearing officer. The hearing officer shall have the authority to set motion deadlines, briefing schedules and
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hearing dates in all cases. Whether or not to hold hearings in a particular case will be within the discretion of the hearing officer. Determinations on petitions for declaratory rulings may be made on the briefs alone. (f) Notice of all petitions for declaratory rulings shall be posted on the website of the Oklahoma Employment Security Commission and read into the record of the first Commission meeting that occurs more than 20 days after the filing of the petition. The notice will contain:
(1) The name of the petitioning party.
(2) The date of filing.
(3) A short synopsis of the issue presented by the petition including the citation to the statute, rule, policy, or procedures that is the subject of the petition.
(4) The address to send motions for permission to file amicus curiae briefs and the deadline for filing these motions.
(g) If it is determined that a party is using the declaratory ruling procedure to harass any other party or to hinder or delay the administration of justice, the hearing officer shall have authority to dismiss the petition on those grounds.
[Source: Added at 25 Ok Reg 1622, eff 6-12-08]
SUBCHAPTER 3 – RECORDS AND INSPECTIONS
240:1-3-1. Location of records
The Oklahoma Employment Security Commission shall maintain records at its official offices. Records shall include those materials which are defined as "records" in the Open Records Act, 51 O.S., Sections 24A.1 through 24A.18.
[Source: Added at 11 Ok Reg 1599, eff 5-12-94]
240:1-3-2. Non-confidential records
(a) During regular business hours any person may inspect any record that is not deemed confidential by law at the office of the Commission where the record is maintained.
(b) The person requesting inspection of the record shall make his or her request in writing. The writing shall include the name, address, and telephone number of the person making the request, the date the records will be inspected, including any relevant identification numbers.
[Source: Added at 11 Ok Reg 1599, eff 5-12-94; Amended at 15 Ok Reg 1495, eff 5-11-98]
240:1-3-3. Confidential records
(a) Employer and unemployment insurance claimant records made confidential under Title 40 O.S., Section 4-508, may be released upon receipt of an administrative subpoena, court order or a notarized waiver 2011 Rules of the Oklahoma Employment Security Commission
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of confidentiality signed by the person with the authority to waive the confidentiality of the records.
(b) The administrative subpoena, court order or wavier of confidentiality form shall be served on the Commission's legal division or the custodian of records twenty (20) days prior to the date on which the records are to be produced. The records requested shall be described as specifically as possible and the administrative subpoena, court order or waiver of confidentiality form shall set out the employer account number or social security number of the employer or claimant whose records are being requested.
(c) An employer or unemployment insurance claimant with proper identification can request a copy of his or her records at the Commission's local office or at the administrative office located in the Will Rogers Memorial Office Building in Oklahoma City.
[Source: Added at 11 Ok Reg 1599, eff 5-12-94; Amended at 12 Ok Reg 1373, eff 5-26-95; Amended at 15 Ok Reg 1495, eff 5-11-98; Amended at 16 Ok Reg 1176, eff 5-13-99; Amended at 21 Ok Reg 1028, eff 5-15-04; Amended at 24 Ok Reg 1232, eff 5-25-07]
240:1-3-4. Copies
(a) Any person wishing to obtain a copy of any record must follow the procedures in rules 240:1-3-2 or 240:1-3-3 and include a request for copies in the writing, administrative subpoena, court order or waiver of confidentiality.
(b) In the event the request constitutes more than twenty (20) pages, the legal division or custodian of records may arrange to mail the copies to the requester, within twenty-five (25) days from the date of receipt of the request.
[Source: Added at 11 Ok Reg 1599, eff 5-12-94; Amended at 12 Ok Reg 1373, eff 5-26-95; Amended at 15 Ok Reg 1495, eff 5-11-98; Amended at 21 Ok Reg 1028, eff 5-15-04]
240:1-3-5. Charges
(a) The Commission shall charge for copies of records, as set out in this rule, and a search fee for staff time spent in obtaining the records, pursuant to 240:1-3-6, except no charge will be made for requests in furtherance of a claim for unemployment benefits or if disallowed by the provisions of 51 O.S. §24A.5.
(b) The document copying fee is twenty-five cents ($0.25) per page or One Dollar ($1.00) per page for a certified copy. This fee is to be paid prior to the release of the requested records.
(c) The reproduction fee for an audio recording of a hearing shall be Ten Dollars ($10.00).
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[Source: Added at 11 Ok Reg 1599, eff 5-12-94; Amended at 11 Ok Reg 4331, eff 7-14-94 (emergency); Amended at 12 Ok Reg 1373, eff 5-26-95; Amended at 23 Ok Reg 884, eff 5-15-06; Amended at 24 Ok Reg 1232, eff 5-25-07]
240:1-3-6. Search fees
The search fee shall be applicable to all confidential records requested for comercial purposes, unless it is determined by the Director, in his or her discretion, that the public inte- rest is served to such an extent that no charge should be applicable. The search fee will be $10.00 for each account or claimant record requested. No search fee will be charged for the production ofnonconfidential record.
[Source: Added at 11 Ok Reg 1599, eff 5-12-94; Amended at 11 Ok Reg 4331, eff 7-14-94 (emergency); Amended at 12 Ok Reg 1373, eff 5-26-95; Amended at 23 Ok Reg 884, eff 5-15-06; Amended at 24 Ok Reg 1232, eff 5-25-07]
240:1-3-7. Receipt of requests
All requests for inspection or release of information, administrative subpoenas, court order or waivers of confidentiality shall be served upon the Legal Department of the Oklahoma Employment Security Commission or the Custodian of Records for the records requested. The Executive Director of the Oklahoma Employment Security Commission shall designate the Custodian of Records.
[Source: Added at 11 Ok Reg 1599, eff 5-12-94; Amended at 15 Ok Reg 1495, eff 5-11-98; Amended at 21 Ok Reg 1028, eff 5-15-04]
240:1-3-8. Notices to requesters
(a) Upon receipt of a request for inspection or copy of any records held by the Commission, the custodian of the record shall, within five (5) days of receipt of the request, notify the person requesting the record of one of the following:
(1) The request is granted and, if costs exceed One Hundred Fifty Dollars ($150) or the person or party requesting the copies owes the Commission in excess of that amount for copies and services already rendered, prepayment may be required.
(2) The request is denied and the reason for the denial. Such denial shall provide the statutory citation or other reasons for the denial.
(3) The request is granted, but that due to circumstances specified in the notice, the inspection of the document or the copy must be delayed. The reasons for the delay shall be specified in the notice sent by the custodian of records.
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(b) In the event a delay is necessary, the custodian of the record shall notify the person requesting the record as soon as the record or copy is available.
(c) In the event the record has been sent to archives, the custodian of the records will inform the requester.
[Source: Added at 11 Ok Reg 1599, eff 5-12-94; Amended at 15 Ok Reg 1495, eff 5-11-98; Amended at 16 Ok Reg 1176, eff 5-13-99]
240:1-3-9. Release of confidential information to specific government agencies
(a) Pursuant to 40 O.S. § 4-508(C), the government agencies, public entities and political subdivisions specified in part (b) of this rule may obtain confidential information maintained by the Oklahoma Employment Security Commission after entering into an agreement with the Oklahoma Employment Security Commission that sets out the purpose the information will be used for, how the information will be transmitted, and how the information will be safe guarded. All costs involved in providing information to government agencies, public entities, or political subdivisions will be set out in the agreement. The information shall be held confidential by the receiving government agency, public entity or political subdivision at all times and shall not be disclosed or open to public inspection. It shall be allowable for the receiving government agency, public entity or political subdivision to release aggregated data.
(b) Government agencies authorized to obtain confidential information from the Oklahoma Employment Security are:
(1) The Oklahoma Department of Commerce, to accomplish specific goals, missions or tasks of the agency as determined by the Oklahoma Legislature;
(2) The Oklahoma Department of Transportation for use in federally mandated regional transportation planning, which is performed as a part of its official duties;
(3) The Oklahoma State Treasurer's office to verify or evaluate the effectiveness of the Oklahoma Small Business Linked Deposit Program on job creation;
(4) The Oklahoma Attorney General for use in investigation of workers' compensation fraud, insurance fraud and health care fraud;
(5) Compsource Oklahoma for use in investigation of workers' compensation fraud;
(6) The Oklahoma Department of Labor for use in investigation of workers' compensation fraud;
(7) The Oklahoma Workers' Compensation Court for use in investigation of workers' compensation fraud;
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(8) The Oklahoma Insurance Department for use in investigation of workers' compensation fraud, insurance fraud and health care fraud;
(9) The Oklahoma State Bureau of Investigation for use in criminal investigations, the location of missing persons or fugitives from justice, and the investigation of insurance fraud and health care fraud;
(10) The Oklahoma State Bureau of Narcotics and Dangerous Drugs Control for use in criminal investigations and the location of missing persons or fugitives from justice;
(11) The Center of International Trade of Oklahoma State University for the development of international trade for employers doing business in the State of Oklahoma;
(12) The Oklahoma State Regents for Higher Education for use in the default prevention efforts and/or collection of defaulted student loans guaranteed by the Oklahoma Guaranteed Student Loan Program;
(13) The Center for Economic and Management Research of the University of Oklahoma to identify economic trends;
(14) The Center for Economic and Business Development at Southwestern Oklahoma State University to identify economic trends;
(15) The Oklahoma Office of State Finance to identify economic trends;
(16) The Department of Mental Health and Substance Abuse Services to evaluate the effectiveness of mental health and substance abuse treatment and state or local programs utilized to divert persons from inpatient treatment;
(17) Public housing agencies for purposes of determining eligibility pursuant to 42 U.S.C., Section 503(I);
(18) An agency of this state or its political subdivisions, or any nonprofit corporation that operates a program or activity designated as a partner in the Workforce Investment Act One-Stop delivery system pursuant to 29 U.S.C.A., Section 2481(b)(1), based on a showing of need made to the Commission;
(19) The national Wage Record Interchange System, at the discretion of the Commission;
(20) The Bureau of the Census of the U.S. Department of Commerce for the purpose of economic and statistical research;
(21) The Oklahoma Health Care Authority for use in determining eligibility for subsidies for health insurance premiums for qualified employers, employees, self-employed persons, and unemployed persons; or
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(22) The Oklahoma State Department of Rehabilitation Services for use in assessing results and outcomes of clients served.
[Source: Amended at 28 Ok Reg 638, eff 5-12-11]
SUBCHAPTER 5 – LOCAL PROJECT FUNDING
240:1-5-1. Purpose
These rules set out the procedures and criteria that will be used to award local project funding contracts by the Oklahoma Employment Security Commission.
[Source: Added at 20 Ok Reg 832, eff 5-12-03]
240:1-5-2. Definitions
The following words and terms, when used in this Chapter, shall have the following meaning, unless the context clearly indicates otherwise:
"Commission" means the Oklahoma Employment Security Commission.
"Local project funding contract" means an agreement made pursuant to Executive Order 98-37, not subject to statutory competitive bidding requirements, between a state agency and a local governmental entity or a private entity, or both, in which the state agency agrees to provide funding to accomplish a public purpose. The direct benefits of a local project funding contract shall accrue primarily to a local population rather than the state as a whole.
"Local Project Administrator" means the person employed by an entity that is awarded a local project funding contract, or the person employed by an entity that will be the fiscal agent acting on behalf of a group of entities that have collaborated to obtain a local project funding contract. The local project administrator will:
(A) Serve as the point of contact with the Commission;
(B) Submit and attest to the accuracy of all reports; and
(C) Receive payment of all funds and manage the funds.
"LPF Auditor" means the employee of the Commission designated by the Executive Director to be responsible for monitoring all local project funding contracts after an award of the contract has been made.
"LPF Officer" means the employee of the Commission designated by the Executive Director to be responsible for reviewing all local project funding contract proposals, and who will award contracts to the successful applicants.
[Source: Added at 20 Ok Reg 832, eff 5-12-03]
240:1-5-3. Local project funding announcement
Each local project funding contract will be announced by press release submitted to 25 newspapers in both metropolitan and rural areas. A paid advertisement will be placed in a newspaper that serves the
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geographic area where the local project will be located. An announcement will also be printed in the Oklahoma Register. All announcements will be submitted at least 20 days before the deadline for making application to obtain a local project funding contract. Each announcement submitted for publication shall contain the following information:
(1) The Oklahoma Employment Security Commission will be the contracting agency;
(2) A description of the type of projects eligible for local project funding contracts;
(3) A description of the type of persons or entities who are eligible or qualified for the local project funding contract;
(4) A total amount of money available from the agency for the local project funding contract;
(5) The closing date and time for receipt of applications; and
(6) The name, business address, telephone number, fax number, and e-mail address of the person who interested parties may contact for additional information and the name and business address of the person to whom applications must be submitted.
[Source: Added at 20 Ok Reg 832, eff 5-12-03]
240:1-5-4. Evaluation of local project funding contract applications
(a) The LPF officer will be responsible for evaluating all local project funding contract applications and to award contracts to the successful applicants
(b) Each local project funding contract application will be evaluated on the following criteria, if relevant:
(1) The lowest unit price or overall cost;
(2) The best value;
(3) The experience of the person or entity applying for the contract;
(4) The licenses, certifications, or academic achievement possessed by the applicant;
(5) The past contractual experience between the Commission and the applicant;
(6) The number of employees and the amount of resources the applicant will devote to the project;
(7) The financial condition or capitalization of the person or entity applying for the contract;
(8) Demonstrated ability to complete the project and meet all reporting requirements; and
(9) That the applicant is an equal opportunity employer.
[Source: Added at 20 Ok Reg 832, eff 5-12-03]
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240:1-5-5. Affidavit of LPF officer
The LPF officer shall be responsible for submitting an affidavit to the Director of the Office of State Finance certifying that the award of the local project funding contract met all criteria set forth in these rules, as well as filing all other documentation required for the Office of State Finance to encumber the necessary funds and pay the local project funding contract.
[Source: Added at 20 Ok Reg 832, eff 5-12-03]
240:1-5-6. Serial numbering of local project funding contracts
Each local project funding contract shall be identified by a serial number that will be cited in all correspondence to the contracting parties and the Office of State Finance concerning the local project funding contract. The number shall begin with the agency number for the Commission, followed by the last two digits of the year in which the contract is made, then followed by the number assigned to the contract. The agency number, year, and contract number will be separated by dashes.
[Source: Added at 20 Ok Reg 832, eff 5-12-03]
240:1-5-7. Monitoring of local project funding contracts
The Commission will be responsible for monitoring all local project funding contracts awarded under these rules. The Commission will have the right to require the local project administrator to submit any reports deemed necessary for the award and administration of the contract, and the local project administrator will allow the LPF Auditor to audit any of its books and records that the auditor deems necessary in order to ensure that the purposes of the contract are being fulfilled and that all laws and rules are being adhered to. The LPF auditor will also have the right to conduct a physical inspection of any facilities or programs that are benefited or impacted by the local project funding contract.
[Source: Added at 20 Ok Reg 832, eff 5-12-03]
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TITLE 240 CHAPTER 5. EMPLOYMENT SERVICE
CHAPTER 5 – EMPLOYMENT SERVICE
SUBCHAPTER 1 – GENERAL PROVISIONS
240:5-1-1. Purpose
This chapter establishes procedures for the administration of the Employment Service in the State of Oklahoma.
[Source: Added at 17 Ok Reg 1594, eff 5-25-00]
240:5-1-2. Definitions [RESERVED]
[Source: Reserved at 17 Ok Reg 1594, eff 5-25-00]
SUBCHAPTER 3. INTERNET USE
240:5-3-1. Internet user registration
The Employment Service provides personal computers in each of its local offices throughout the state for the purpose of accessing the Internet. Members of the public may use this Internet access to look for employment, obtain information concerning prospective employers, prepare resumes, and any other activity associated with searching for employment. In order to utilize the personal computers for this purpose, the user must complete an Internet User Application form, which is available in each local office. If the user is under the age of 18, the user's parent or guardian must sign the Internet User Application form before Internet access will be granted.
[Source: Added at 17 Ok Reg 1594, eff 5-25-00]
240:5-3-2. Time limit on Internet use
Each user may use the Internet computer for 30 minutes per day. If there are no other users waiting to access the Internet computer, the user may continue using it past this time limit. If another user requests to access the Internet computer, and the current user has exceeded the 30 minute time limit, then the current user will be given an additional 15 minutes to complete what he or she is working on and will be required to relinquish the computer at that time.
[Source: Added at 17 Ok Reg 1594, eff 5-25-00]
240:5-3-3. Internet user prohibitions
Internet users must cooperate with the staff of the Oklahoma Employment Security Commission and follow all instructions regarding the use of the Internet computers. Internet users may not do any of the following:
(1) Interfere with or disrupt network users, services, or equipment.
(2) Make any attempt to damage computer equipment or software.
(3) Make any attempt to alter software configurations.
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(4) Make any attempt to cause degradation of system performance.
(5) Use any OESC work station for illegal or criminal purposes.
(6) Access pornographic or gambling sites.
(7) Violate copyright laws or software licensing agreements while using the Internet computer.
(8) Engage in any activity which is deliberately malicious, libelous or slanderous.
(9) Install or download any software.
(10) Use a locking floppy diskette.
(11) Download information.
[Source: Added at 17 Ok Reg 1594, eff 5-25-00]
240:5-3-4. Penalties for violations
If an Internet user is found to have violated any of the restrictions set out in 240:5-3-3, the user will receive a warning for the first violation, a 30 day suspension for the second violation, and an indefinite suspension for the third violation.
[Source: Added at 17 Ok Reg 1594, eff 5-25-00; Amended at 21 Ok Reg 778, eff 5-1-04]
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TITLE 240 CHAPTER 10. UNEMPLOYMENT INSURANCE PROGRAM
CHAPTER 10 – UNEMPLOYMENT INSURANCE PROGRAM
SUBCHAPTER 1 – GENERAL PROVISIONS
240:10-1-1. Purpose
This Chapter establishes procedures for:
(1) collection of unemployment taxes from employers;
(2) payment of benefits to unemployed individuals;
(3) individuals to file appeals when they are adversely affected by decisions of the Commission; and
(4) all actions necessary for the efficient operation of the OES Act [40:4-302].
240:10-1-2. Definitions
The following words and terms, when used in this Chapter, shall have the following meaning, unless the context clearly indicates otherwise:
"Commuting distance" means an automobile driving distance of fifty (50) miles from a claimant's place of residence.
“Full-time work” means employment in thirty-two (32) or more hours of work per week.
"Good cause" means reasons beyond the control of the party seeking relief.
"Independent contractor" means:
(A) Any person who performs services according to their own methods and without control except as to results is an independent contractor, if they are:
(i) Customarily engaged in an independently-established business; or
(ii) Performing service outside the usual course of the contractor's business and outside the places of such business.
(B) In order to be considered "without control" the individual providing the service shall:
(i) Provide their own tools and equipment;
(ii) Pay their own ordinary and customary business expenses;
(iii) Risk losing money from the contract;
(iv) Be free to hire their own assistants; and
(v) Be responsible for obtaining and maintaining all business, tax registrations and all business occupational licenses required by federal, state, or local laws or ordinances.
(C) A written contract relating to such services shall be considered under 40 O.S. Section 1-210 (14), along with all other pertinent evidence in determining employment status and shall not be accorded any greater weight than any other evidence.
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(D) This definition shall not be interpreted or construed as conflicting with Section 3304 (a) (6) (a) of the Federal Unemployment Tax Act.
"Interested Party" means:
(A) In an unemployment claim appeal - the Commission, a claimant who files a claim for unemployment benefits with the Commission, and any employer who properly files a written objection to the claim pursuant to 40 O.S. §2-503 (E).
(B) In an unemployment tax protest - the Commission and the employer with an account that is directly affected by a decision made by the Commission or its representative.
(C) In a supplemental unemployment benefit plan appeal - the Commission, the employer that made application for approval of the plan, and the collective bargaining agent of the employees, if any exists.
"Leases" and "Rents" [40:1-210(15)] mean a contract between an owner of a business, building, or property and a leasee, in which:
(A) Space is leased, sublet, or rented for the purpose of operating or conducting a trade or business by the leasee;
(B) The lease or rental fee is set at a fixed amount per month, that remains constant for the term of the lease, sublease, or rental contract; and
(C) Is not based upon a percentage of income or revenue earned in the trade or business.
"Mail", "Mailed", and "Mailing", as used in 40 O.S. §1-224, shall mean the mailing of a document through the United States Postal Service or a private delivery service designated by the United States Secretary of the Treasury pursuant to 26 U.S.C. §7520(f), as a delivery service that may deliver returns, claims, statements, or other documents to the Internal Revenue Service.
“Part-time work” means employment of less than thirty-two (32) hours of work in a week.
"Profiling" means:
(A) A systematic computer generated process that:
(i) Identifies those claimants most likely to exhaust regular compensation and will need job search assistance services to make a successful transition to new employment;
(ii) Refers identified claimants to reemployment services; and
(iii) Collects follow-up information relating to the services received.
(B) Data elements which may be used in the identification process for profiling are:
(i) Recall status;
(ii) Union hiring hall agreement;
(iii) Education;
(iv) Job tenure;
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(v) Industry;
(vi) Occupation;
(vii) Unemployment rate;
(viii) Number of prior UI claims; and
(ix) Maximum weekly benefit amount.
(C) Data elements prohibited for usage in profiling are:
(i) Age;
(ii) Race or ethnic group;
(iii) Sex;
(iv) Color;
(v) National origin;
(vi) Disability;
(vii) Religion;
(viii) Political affiliation; and
(ix) Citizenship.
"Reasonable cash value" [40:1-218] means an amount estimated and determined by consideration of the position held, type of work performed, duration of the work, and customary compensation of like providers in like industries.
"Reemployment Services" means those services which provide job search assistance and job placement services, which are counseling, testing, and providing occupational and labor market information, assessment, job search workshops, job clubs and referrals to employers, and other similar services.
"Temporary Layoff" means a short term cessation of work or employment in which the employer maintains an attachment to an employee by means of a recall date.
"Wages"
(A) "Gratuities or Tips" The employer shall include as wages all monies paid as gratuities or tips actually received by an individual in the course of his work [40:1-218] or, if actual information is not available, gratuities and tips shall be allocated to the employer in the amount of 8% of gross receipts.
(B) "Noncash remuneration" Noncash remuneration means meals, lodging or any other payment in kind received by a worker from the employing unit in addition to or in lieu of cash payments for services unless such meals and lodging are furnished on the business premises of the employer for the convenience of the employer. [40:1-218(4)]
"Wages paid"
(A) The term "wages paid" [40:1-219] shall include both wages actually received by the worker and wages constructively paid. Wages shall be considered constructively paid when they are credited to the account of or set apart for a worker so that they may be drawn upon by the worker at any time although not then actually in the worker's possession. A mere
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crediting of the wages to the worker's account, without actually making them available to the worker so that they may be drawn upon by him/her at any time, does not constitute constructive payment.
(B) In the case of an employer who terminates his/her coverage as of January 1st of some year, the term "wages paid" shall include all wages earned for all pay periods up to and including the last payroll period ending in that year, at the end of which, the employer's coverage is terminated.
(C) "Wages paid" to the worker are to be reported in the calendar quarter in which they were actually paid.
"Week"
(A) For the purpose of paying benefits and for the purpose of this Chapter, a "week" [40:1-220] shall consist of a calendar week which begins at 12:01 A.M. Sunday and ends at midnight the following Saturday.
(B) Provided that the Commission, upon its own initiative or upon application by any employer, may prescribe that with regard to individuals involved in a temporary layoff with a specified date to return to work and whose assigned work week consists of consecutive work days within two different calendar weeks, the definition of a "week" shall be the work week as assigned by the employer.
(C) For the purposes of determining full time work, "week" means a period of seven consecutive days that is established by an employer as its regular work week.
[Source: Amended at 8 Ok Reg 2301, eff 6-13-91; Amended at 9 Ok Reg 1969, eff 6-11-92; Amended at 9 Ok Reg 3763, eff 8-7-92 (emergency); Amended at 10 Ok Reg 1397, eff 4-26-93; Amended at 10 Ok Reg 1981, eff 5-27-93; Amended at 12 Ok Reg 37, eff 11-1-94 (emergency); Amended at 12 Ok Reg 1375, eff 5-26-95; Amended at 14 Ok Reg 2905, eff 7-11-97; Amended at 16 Ok Reg 1178 and 1181, eff 5-13-99; Amended at 17 Ok Reg 1595, eff 5-25-00; Amended at 18 Ok Reg 1114, eff 5-11-01; Amended at 24 Ok Reg 1233, eff 5-25-07; Amended at 25 Ok Reg 1623, eff 6-12-08; Amended at 27 Ok Reg 821, eff 5-1-10; Amended at 28 Ok Reg 1055, eff 6-15-11]
240:10-1-3. Time computation
(a) In computing any period of time prescribed or allowed by the Employment Security Act of 1980, by these rules, or by order of a hearing officer, the day of the act, event, or default from which the designated period of time begins to run shall not be included. All intervening days falling between the beginning and end of the time period shall be counted, including Saturdays, Sundays, holidays and any day the offices of the Oklahoma Employment Security Commission are closed for part or all of the day. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday as defined by the
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Oklahoma Statutes or any other day when the offices of the Oklahoma Employment Security Commission do not remain open for public business until 4:00 p.m., in which event the period runs until the end of thenext day which is not a Saturday, a Sunday, or a legal holiday as defined by the Oklahoma Statutes or any other day when the offices of the Oklahoma Employment Security Commission do notremain open for public business until 4:00 p.m.
(b) This rule shall not apply to the calculation of the time period set out in rule 240:10-3-23.
[Source: Added at 18 Ok Reg 1114, eff 5-11-01; Amended at 24 Ok Reg 1233, eff 5-25-07; Amended at 27 Ok Reg 821, eff 5-1-10]
SUBCHAPTER 3 – BENEFITS
PART 1 – GENERAL PROVISIONS
240:10-3-1. Purpose
This Subchapter establishes the procedures for the payment of benefits to unemployed individuals who qualify under the Oklahoma Employment Security Act.
240:10-3-2. Claimant's notification of change of address
It is the responsibility of the claimant to keep the Commission informed of his or her current mailing address at all times relevant to the claimant's claim for benefits. If the claimant has a change of mailing address, he or she must inform the Commission of this change in writing, by telecommunication, or via the Internet.
[Source: Added at 4 Ok Reg 1419, eff 4-27-92; Amended at 19 Ok Reg 1004, eff 5-13-02; Amended at 24 Ok Reg 1233, eff 5-25-07; Amended at 26 Ok Reg 1030, eff 5-25-09]
PART 3 – COMPUTATION
240:10-3-10. Approved training
(a) Definition of approved training. "Approved training" means any training program authorized and financed by the United States Congress and under the control of the United States Department of Labor, Employment and Training Administration, or other suitable training program approved by the Commission.
(b) Requirements for approval of training. Approval of an individual for training will be determined by the Commission through consideration of all of the factors set out in 40 O.S. Section 2-108. In keeping with Section 2-108, the following definitions of terms are to be followed:
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(1) "Continued attendance and satisfactory progress" as used in 40 O.S. Section 2-108 (B) shall be evidenced by continued enrollment at the training facility.
(2) "Substantial and recurring demand" as used in 40 O.S. Section 2-108 (A) (2) means that the demand for workers in such occupation is projected to continue for the foreseeable future.
(c) Authority of Executive Director. The Executive Director of the Oklahoma Employment Security Commission is authorized to issue operating procedures as necessary to implement OAC 240:10-3-10.
[Source: Amended at 8 Ok Reg 2301, eff 6-13-91; Amended at 9 Ok Reg 1833, eff 6-11-92; Amended at 24 Ok Reg 1233, eff 5-25-07; Amended at 27 Ok Reg 821, eff 5-1-10]
240:10-3-11. Priority of deductions from unemployment insurance benefits
(a) If more than one type of deduction is being made from a claimant's weekly benefit amount, the deductions will be made in the following order until all funds are exhausted:
(1) Offset of a former benefit overpayment pursuant to 40 O.S. §2-613;
(2) Deduction of child support obligations pursuant to 40 O.S. §§2-303 and 2-801;
(3) Deductions made to repay a food stamp over issuance pursuant to 40 O.S. §§2-303 and 2-803;
(4) Deductions made in compliance with an Internal Revenue Service tax levy issued pursuant to 26 U.S.C. §6331(h);
(5) Voluntary deduction of individual income tax withholding pursuant to 40 O.S. §2-305;
(6) Voluntary deduction of health insurance premiums pursuant to 40 O.S. §2-304; and
(7) Any other deduction allowed by law.
(b) After the deduction of items listed in (a)(1)(2)(3) and/or (4) are made from the claimant's weekly benefit amount, if the balance remaining is less than that required to pay the income tax deduction, the health insurance premium deduction or any other deduction in full, then no deduction will be made for those items.
[Source: Added at 14 Ok Reg 2909, eff 7-11-97; Amended at 15 Ok Reg 1496, eff 5-11-98]
240:10-3-12. Payment of benefits
(a) As of December 1, 2008, all unemployment benefits payable by the Commission pursuant to the provisions of the Employment Security Act of 1980, shall be paid by direct deposit to the bank account of the eligible claimant, or by crediting a debit card issued to the eligible claimant. The
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debit card will be the payment method unless the claimant designates direct deposit.
(b) The claimant must communicate the direct deposit information as directed by the Commission. The payment option may be changed during the claimant's benefit year.
(c) If a claimant chooses to be paid by direct deposit to the claimant's bank account, the claimant must provide the Commission with the following information:
(1) Claimant's bank account number
(2) Claimant's bank routing number
(d) If the claimant chooses to be paid by crediting benefit payments on a debit card, the debit card will be mailed to the address given by the claimant in the claimant's initial claim for benefits or in the latest notice of change of address. The claimant will be responsible for the debit card.
(e) Benefits paid by direct deposit or by debit card will be paid under the same conditions as payments formerly made by check. All rules of eligibility, disqualification, fraud, and claimant error will apply.
[Source: Added at 23 Ok Reg 885, eff 5-15-06; Amended at 24 Ok Reg 1233, eff 5-25-07; Amended at 26 Ok Reg 1030, eff 5-25-09; Amended at 27 Ok Reg 821, eff 5-1-10]
PART 5 - ELIGIBILITY
240:10-3-20. Instructions to secure work
(a) Able and available to accept employment. When a claimant files an initial claim for benefits, the Commission shall instruct the claimant that, in addition to registering for work, the claimant must diligently search for suitable employment. [40:2-408(2)]
(b) Seek and accept work. The Commission shall direct and require that in diligently searching for work the claimant must do those things that a reasonably prudent individual would be expected to do to secure work using any means that are appropriate and customary each week. Special circumstances:
(1) Union members must be registered with the hiring hall or placement facility of their labor union and be a member in good standing.
(2) A claimant must participate in all reemployment services offered by the Commission if selected by a profiling program established by the Oklahoma Employment Security Commission or any other State Employment Service. [40:2-417(4)]
(3) If an employee is involved in a temporary layoff, is receiving partial unemployment insurance pursuant to 240:10-3-24, or is receiving supplemental unemployment benefit payments through an approved plan, the work search requirement is met if the 2011 Rules of the Oklahoma Employment Security Commission
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employee maintains an attachment to the employer and remains available to return to work for the employer.
[Source: Amended at 8 Ok Reg 2301, eff 6-13-91; Amended at 12 Ok Reg 37, eff 11-1-94 (emergency); Amended at 12 Ok Reg 1375, eff 5-26-95; Amended at 15 Ok Reg 1496, eff 5-11-98; Amended at 18 Ok Reg 1114, eff 5-11-01; Amended at 23 Ok Reg 885, eff 5-15-06; Amended at 24 Ok Reg 1233, eff 5-25-07]
240:10-3-21. Reasonable assurance
A "reasonable assurance" means a written, verbal, or implied agreement that the employee will perform such service during the ensuing academic year or term or tenure status. A written agreement is preferable. [40:2-209 and 2-415]
240:10-3-22. Claims for benefits
Claims for unemployment insurance benefits are to be filed via Internet or by telecommunication. Initial claims, additional initial claims, and continued claims shall be deemed to cover "total unemployment" or "partial unemployment."
[Source: Amended at 15 Ok Reg 1496, eff 5-11-98; Amended at 24 Ok Reg 1233, eff 5-25-07]
240:10-3-23. Claims for total unemployment benefits
(a) Definition. An individual shall be defined as in "total unemployment" during a week whenever:
(1) the individual has been separated from employment with his/her last regular employer; and
(2) the individual has not during the week performed services in employment for any employer; or
(3) the individual has worked less than full time for some employer and earned less than his/her weekly benefit amount plus $100.00. [40:1-217]
(b) Initial claim. The initial claim may serve as a registration for work.
(c) Effective date. The effective date of an initial claim, additional initial claim, or a reopened claim shall be the first day of the calendar week in which the individual first files the initial claim, additional initial claim, or reopened claim.
(d) Failure to report/good cause. When the Commission representative determines that a claimant had good cause for failure to report as directed, a claim may be accepted at a later date, not to exceed seven (7) calendar days from the date originally specified for his/her reporting.
(e) Continued claim. A claimant who is filing for benefits under the mail claim system, the Interactive Voice Response System, or the Internet may file a continued claim provided the claimant files the continued claim
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within fourteen (14) calendar days from the week ending date of the claim or within fourteen (14) calendar days from the date the continued claim is furnished to the claimant.
(f) Determination of eligibility for benefits. The OES Act prescribes the following requirements:
(1) A Commission representative shall determine claimant's eligibility for benefits.
(2) A Commission representative shall accept written and verbal statements from the claimant and the employer.
(3) A Commission representative shall take any action necessary to determine the facts and to determine the rights of both the employer and claimant.
(4) A Commission representative shall write a determination which must include the following:
(A) An explanation of the parties' appeal rights;
(B) A summary of pertinent facts;
(C) The reasons for allowing or denying benefits; and
(D) The conclusion or legal results of the decision.
(5) Any interested party may appeal a determination. The appeal shall be filed with the Commission. When the appeal is filed, all interested parties shall be notified.
(g) In computing any period of time described in this rule, the day of the event from which the designated period of time begins to run shall not be included. All intervening days falling between the beginning and end of the time period shall be counted, including Saturdays, Sundays, holidays and any day the offices of the Oklahoma Employment Security Commission are closed for part or all of the day. The last day of the period so computed shall be included. Claimants required to make a filing on a day in which the offices of the Commission are not open shall make the filing through the Internet or by telephone through the Interactive Voice Response system. Failure to file for a claim within the time allowed will result in denial of benefits for that week.
[Source: Amended at 11 Ok Reg 4333, eff 8-1-94 (emergency); Amended at 12 Ok Reg 1375, eff 5-26-95; Amended at 15 Ok Reg 1496, eff 5-11-98; Amended at 24 Ok Reg 1233, eff 5-25-07; Amended at 27 Ok Reg 821, eff 5-1-10; Amended at 28 Ok Reg 1057, eff 6-15-11]
240:10-3-24. Claims for partial unemployment benefits
(a) Condition for filing claim.
(1) Claims for "partial unemployment" may be filed for workers only at the request and assistance of the workers' regular employer and under the conditions set forth herein.
(2) An employer who places regular, full-time workers on a temporary reduced work week schedule in order to retain the
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services of such workers until full-time work can be resumed may assist the worker(s) in filing claims for unemployment compensation in "partial unemployment" for each calendar week in which work is performed on a reduced schedule.
(3) An initial or additional initial claim for partial unemployment shall not be filed for a worker who was employed during the calendar week for his/her normal, customary, full-time working hours, or who did not perform any work or have earnings payable for the week.
(4) The employer must be in substantial compliance with all requirements of the Employment Security Act of 1980. If an employer is delinquent in payment of taxes, the employer will be deemed in substantial compliance if the employer enters into a payment plan agreement with the Commission and is in compliance with the agreement. All quarterly unemployment tax reports must be filed before an employer requests partial unemployment.
(b) Partial unemployment defined. An individual shall be defined as in "partial unemployment" during a calendar week whenever:
(1) the individual has not been separated from employment with his/her last regular employer; and
(2) the individual has during the week performed services in employment for his/her regular employer; but
(A) because of lack of work was reduced to less than his/her normal, customary, full-time work hours; and
(B) has earnings from such reduced work schedule for that week of less than his/her weekly benefit amount plus $100.00.
(c) Partial continued claims.
(1) A worker who filed a partial initial claim, or who has been receiving benefits for partial unemployment, may continue to file partial continued claims as if he/she were a partially unemployed worker for not more than the first six (6) consecutive weeks of total unemployment (no earnings) or part-total unemployment (some earnings from another employer) immediately following the period of partial unemployment so long as he/she remains attached to his/her regular employer.
(2) A worker who files such partial claims for six (6) consecutive weeks during which he/she has no wages payable from his/her regular employer shall file an initial claim, additional initial claim, or continued claim, as appropriate, under OAC 240:10-3-23 "Claims for Total Unemployment Benefits" for subsequent weeks.
(d) Effective date. The effective date of an initial claim or additional initial claim for partial unemployment shall be the first day of the calendar week during which the individual was employed less than his/her normal 2011 Rules of the Oklahoma Employment Security Commission
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customary, full-time work because of lack of work and in which earnings from such reduced work is less than his/her weekly benefit amount plus One Hundred Dollars ($100.00).
(e) Filing partial claims. A worker who is "partially unemployed" may, with the assistance of his/her employing unit, claim partial benefits under the following conditions:
(1) The employing unit shall, immediately following the calendar week in which the worker first performed work on a reduced work schedule, execute the Commission's "Claim for Partial Benefits," Form OES-526P, for each worker who has worked during the week in such reduced work schedule of less than full-time. Upon proper execution, the Form OES-526P will be delivered to the worker together with a copy of the Commission's booklet entitled, "Information for Workers Who Are Unemployed."
(2) Not later than fourteen (14) days after receiving such Form OES-526P, the worker shall complete the portion denoted as "Claimant's Report of Other Earnings" and return it to his or her employer to submit or the claimant may mail the completed form to the address listed on the form. Form OES-526P, properly completed, shall constitute the worker's claim for benefits and registration for work within the meaning of 40 O.S. Section 2-203 and 2-204. The form will also constitute the waiting period, required by 40 O.S. Section 2-206, providing the total earnings reported by the regular employing unit plus "other earnings," if any, as reported by the worker does not equal or exceed the "weekly benefit amount of the newly established benefit year plus OneHundred Dollars ($100.00)."
(3) Upon receipt of the first Form OES-526P, properly completed, the Commission will compute a weekly benefit amount for the worker-claimant. Such computation shall be made effective as of the first day of the calendar week for which the claim was filed that the claimant was partially unemployed. The Commission will furnish the employing unit a"Notice of Partial Benefits," Form OES-532, setting forth the claimant's weekly benefit amount and his/her benefit year ending date. The Commission will also mail the monetary eligibility for benefits form to the worker-claimant.
(4) Upon receipt of an allowed "Notice of Determination of Partial Benefits," Form OES-532, the employing unit shall execute and deliver to the worker-claimant concerned a "Continued Claim for Partial Benefits," Form OES-527P, immediately for each prior calendar week of partial unemployment applicable and each subsequent calendar week of partial unemployment for further completion by the worker and submission to the Commission for payment processing.
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(f) Late claims. If a Commission representative determines that a worker-claimant filed no claims due to the failure of the employing unit to comply with the requirements of the Commission Rules, or if the claimant was coerced to refrain from the prompt filing of the claim(s), the Commission representative shall extend the period during which the claims may be filed to a date which shall not be less than one (1) nor more than four (4) weeks after such determination. The Commission shall notify the employing unit and the worker-claimant in writing that the arrangement to execute "Partial Claims for Benefits" has been terminated. Claimants will file claims for subsequent weeks under the rules and statutes for total unemployment benefits.
[Source: Amended at 11 Ok Reg 4333, eff 8-1-94 (emergency); Amended at 12 Ok Reg 1375, eff 5-26-95; Amended at 23 Ok Reg 885, eff 5-15-06; Amended at 24 Ok Reg 1233, eff 5-25-07]
240:10-3-25. Payment of claim of deceased worker
(a) Survivor's entitlement. Upon the death of any claimant, if claim for benefits has been filed, processed and determined in favor of claimant, or if a check has been issued and unpaid to the decedent, such benefits shall be paid to the administrator or executor of the estate of the deceased claimant. In the event that the estate is in probate, such benefits may, by order of the Commission, be paid to any person or persons designated by the Commission in the following order:
(1) To the surviving spouse.
(2) If no surviving spouse, to the surviving children in equal shares.
(A) If all children are of legal age, and living, to them directly in equal shares. The issues of any deceased child taking share of deceased parent in equal shares.
(B) If all surviving children are minors, to the person in custody of said children for the use and benefit of such minor children.
(C) If there are surviving children of legal age and also surviving children who are minors, to them in equal shares. Payment for the minor children to be made to the person in custody of said children for the use and benefit of such minor children.
(3) In case there is no surviving spouse and no surviving children, to the surviving parents in equal shares. If only one survives, to the surviving parent.
(4) In case there is no surviving spouse, children or parent or parents, then to the brothers and sisters, or to the surviving brother or sister. In the event there be no surviving brother or sister, then to the issue of any deceased brother or sister in equal shares.
(b) Survivor's responsibility. Any person claiming benefits which are due and payable to a deceased claimant as herein provided shall make
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claim for such benefits which claim shall be supported by an affidavit setting forth the relationship of the person claiming such benefits to the deceased claimant and that there are no persons prior in order as set forth in Subsection (a) of this Rule to receive said benefits. Said affidavit shall also set forth that said claimant died intestate, that no administrator or executor has been appointed to administer said estate, and that to the best information and belief of the affiant, at the time of death there were benefit payments due claimant under the provisions of the OES Act. The Commission shall be under no obligation to determine the relationship of the affiant or affiants to the deceased claimant.
(c) Commission's responsibility. Upon receipt of such affidavit, the Commission may issue written authorization to such affiant or affiants to endorse and cash all unpaid benefit checks or warrants issued to such deceased claimant, by endorsing thereon claimant's name and the affiant's or affiants' names.
(d) Survivor's filing requirement. Any claim for benefit payments due a deceased claimant as herein provided must be filed with the Commission within ninety (90) days following the death of the claimant; provided, however, the Commission in its discretion may extend said period.
(e) Exceptions to survivor's claim. Unless within the time prescribed herein a claim is made for benefits due a deceased claimant by one of the parties herein authorized to make such claim, any checks or vouchers issued directly to said claimant but not cashed prior to his/her decease shall be cancelled, and any additional benefit payments to said deceased claimant for weeks of unemployment prior to his/her death shall be likewise cancelled, and all sums represented by benefits payable to said deceased claimant prior to his/her death shall remain a part of the Unemployment Compensation Fund.
240:10-3-26. Payment of benefits to interstate claimants
(a) Interstate agreement. This Section shall govern the Commission in its administrative cooperation with other states adopting a similar rule for the payment of benefits to interstate claimants.
(b) Definitions. The following words and terms, when used in this Section, shall have the following meaning, unless the context clearly indicates 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 his/her unemployment, under the unemployment insurance law of any state.
(3) "Interstate benefit payment plan" means the plan approved by the National Association of State Workforce Agencies under which benefits shall be payable to unemployed individuals absent from
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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 "interstate claimant" shall not include any individual who customarily commutes from a residence in an agent state to work in a liable state unless the Commission 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) "States" include the United States, the District of Columbia, Puerto Rico and the Virgin Islands. [40:1-216]
(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.
(c) Registration for work.
(1) Each interstate claimant shall be registered for work, through any public employment office in the agent state when and as required by the law and procedures of the agent state. Such registration shall be accepted as meeting the registration requirements of the liable state.
(2) Each agent state shall duly report, to the liable state in question, whether each interstate claimant meets the registration requirements of the agent state.
(d) Canadian claims. Extension of interstate benefit payments will include claims taken in and for Canada. OAC 240:10-3-26 shall apply in all its provisions to claims taken in and for Canada.
[Source: Amended at 24 Ok Reg 1233, eff 5-25-07]
240:10-3-27. Social Security account numbers or claim ID number
(a) Submittal by employing unit. Each employing unit shall submit the name and Social Security account number of a worker when communicating with the Commission in connection with any report, claim, or proceeding under the OES Act with respect to such worker.
(b) Submittal by individual. Any individual shall submit his/her name and Social Security account number or a claim ID number when communicating with the Commission in connection with any report, claim, or proceeding under the OES Act with respect to such individual.
[Source: Amended at 15 Ok Reg 1496, eff 5-11-98]
240:10-3-28. Application of payments made to repay an overpayment of benefits
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When a person makes a payment to the Commission to repay an indebtedness created by a previous overpayment of unemployment benefits, the payment shall be applied in the following manner:
(1) First to any fees that have been charged to the debtor until all fees are paid.
(2) Second to the accrued interest until all interest is paid.
(3) Third to the principal amount of the overpayment.
[Source: Added at 9 Ok Reg 1419, eff 4-27-92; Amended at 24 Ok Reg 1233, eff 5-25-07]
240:10-3-29. Employer leave due to illness or disability
If an employer places an employee on leave due to the illness or disability of the employee or the employee's immediate family member as defined by the Employment Security Act of 1980 at 40 O.S. §2-210, and the employer will allow the employee to return to work once the employee is released to work by the employee's physician or the assistance to the employee's immediate family member is no longer required, then the employee will be deemed to be job attached and not separated from employment.
[Source: Added at 28 Ok Reg 1057, eff 6-15-11]
PART 7 – PROTECTION OF RIGHTS AND BENEFITS
240:10-3-30. Notice to claimants of income tax withholding program
All claimants of unemployment insurance benefits will be notified of the program in which state and federal income taxes may be deducted from the claimant's weekly benefit amount. The notice shall advise each claimant that:
(1) Unemployment insurance benefits are subject to state and federal income tax;
(2) State and federal requirements exist pertaining to estimated tax payments;
(3) The claimant may elect to have state and federal income taxes deducted and withheld from the claimant's payment of unemployment benefits at the percentages specified in 40 O.S. Section 2-305;
(4) Participation by the claimant in the income tax withholding program is voluntary; and
(5) The claimant shall be permitted to change a previously elected withholding status one time each benefit year. A change in withholding status must be requested by the claimant in writing or by telecommunication.
[Source: Added at 14 Ok Reg 2905, eff 7-11-97; Amended at 19 Ok Reg 1004, eff 5-13-02; Amended at 24 Ok Reg 1233, eff 5-25-07; A]
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240:10-3-31. Amounts deducted held in Unemployment Trust Fund
Amounts of money deducted and withheld by the Commission from unemployment benefits shall remain in the unemployment trust fund for the State of Oklahoma until transferred to the federal and state taxing authorities as a payment of income tax.
[Source: Added at 14 Ok Reg 2905, eff 7-11-97]
240:10-3-32. Federal procedures followed
The Commission shall follow all procedures specified by the United States Department of Labor and the Internal Revenue Service of the United States pertaining to the deducting and withholding of income tax.
[Source: Added at 14 Ok Reg 2905, eff 7-11-97]
240:10-3-33. Priorities of deductions from benefits [REVOKED]
[Source: Added at 14 Ok Reg 2905, eff 7-11-97; Revoked at 15 Ok Reg 1496, eff 5-11-98]
240:10-3-34. Calculation of deductions
The amount of claimant's income tax deduction will be calculated as a percentage of the gross weekly benefit amount due the claimant, before any other deductions are made. The percentages to be used in this calculation are specified in 40 O.S. Section 2-305.
[Source: Added at 14 Ok Reg 2905, eff 7-11-97]
240:10-3-35. Personal identification numbers
At the claimant's option, the weekly filings for a continued unemployment claim can be made by telecommunication through the Commission's automated voice response system or via the Internet. In order to utilize these methods, the claimant will establish a personal identification number (PIN). It is the responsibility of the claimant to keep his or her personal identification number confidential at all times. A third party may not utilize a claimant's personal identification number to file a continued claim on behalf of, or in place of, the claimant. If a third party uses a claimant's personal identification number to obtain benefits, this will be considered unemployment compensation fraud.
[Source: Added at 14 Ok Reg 2905, eff 7-11-97; Amended at 24 Ok Reg 1233, eff 5-25-07]
PART 9 - DISQUALIFICATION
240:10-3-40. Normal working day [REVOKED]
[Source: Revoked at 15 Ok Reg 1496, eff 5-11-98]
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240:10-3-41. Application of retirement proceeds and severance pay
(a) Retirement proceeds. A lump-sum distribution from a retirement plan shall be deductible from benefits in the week received.
(b) Severance pay. Severance pay which is deemed wages shall be deductible from benefits in the week received.
[Source: Amended at 9 Ok Reg 1327, eff 2-27-92 (emergency); Amended at 9 Ok Reg 1833, eff 6-11-92; Amended at 21 Ok Reg 779, eff 5-1-04]
240:10-3-42. Labor disputes
(a) Initial notice to Commission. In cases of unemployment due to a strike, lockout or other labor dispute, the employing unit shall mail to the Oklahoma Employment Security Commission, Benefits, P. O. Box 52003, Oklahoma City, Oklahoma 73152-2003, a notice setting forth the existence of such dispute and the approximate number of workers affected.
(b) List of participants. Upon request by the Commission, such employing unit shall furnish to the Commission the names and Social Security account numbers of workers ordinarily attached to the department or the establishment where unemployment is caused by strike, lockout, or labor dispute.
(c) Status report of labor dispute. After the Appeal Tribunal has determined that a labor dispute exists, the Commission shall, once a month, send a request to the employer and the union representative or employee representative asking for the status of the labor dispute.
(d) Claim processing. In order to expedite the determination of whether or not a labor dispute exists, once the Appeal Tribunal has received notice that a possible labor dispute exists, and it has received the names and Social Security account numbers of workers ordinarily attached to the department or the establishment where the dispute exists (OAC 240:10-3-42 (a) and (b)), the Appeal Tribunal may accept a stipulation from any claimant,on a form to be designated by the Commission, that said claimant will be represented in his/her claim before the Appeal Tribunal as to the existence or not of a labor dispute by a named agent or representative. Said form shall enable the Appeal Tribunal to rule on the existence of a labor dispute, which determination shall be binding on all claimants who have stipulated to the representation by the agent.
(e) Interim employment. Any claimant for unemployment benefits who has been determined tobe ineligible to receive benefits because he/she is involved in a labor dispute may become eligible for benefits if he/she has accepted other employment and has earned wages equal to or in excess of ten (10) times his/her weekly benefit amount, provided he/she otherwise qualifies. Provided further, that the base period employer or employers shall not be charged for any benefits paid.
[Source: Amended at 12 Ok Reg 1375, eff 5-26-95; Amended at 24 Ok Reg 1233, eff 5-25-07]
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240:10-3-43. Performed service and earned remuneration; reemployed and has earned wages
(a) The terms performed service and earned remuneration as used in 40 O.S. Section 2-109, and reemployed and has earned wages as used in 40 O.S. Sections 2-404, 2-406, and 2-418 shall mean that the individual has performed service in employment and earned wages for that service and employment.
(b) Wages (or remuneration) as used and applied in 40 O.S. Sections 2-109, 2-404, 2-406 and 2-418 in conjunction with the term ten (10) times his weekly benefit amount shall be those wages that are subject to coverage by the OES Act and subject to Federal Social Security Taxes and/or Federal and State Income Tax laws.
(c) "Earned remuneration" means reasonable compensation derived from the providing of a service, declared or undeclared, based upon the average remuneration paid to like service providers in like industries.
[Source: Amended at 8 Ok Reg 2301, eff 6-13-91; Amended at 24 Ok Reg 1233, eff 5-25-07]
240:10-3-44. Domestic violence or abuse [REVOKED]
[Source: Added at 21 Ok Reg 779, eff 5-1-04; Amended at 23 Ok Reg 888, eff 5-15-06]
240:10-3-45. Cases involving positive drug or alcohol tests
In order to establish that the drug or alcohol test of an unemployment insurance claimant was conducted in accordance with the Standards for Workplace Drug and Alcohol Testing Act, 40 O.S. §551 through 565, the employer must produce the following:
(1) Documentation of a positive test result issued by the testing facility that performed the test.
(2) Documentation of the chain of custody of the testing sample from the point of collection to the testing facility.
(3) The medical review officer's certification of proper testing standards and procedures.
(4) A statement concerning the circumstances, as set out in 40 O.S. §554, under which the testing was requested or required.
(5) A copy of the employer's drug testing policy as required by 40 O.S. §555.
(6) Documentation showing that the employer provides an employee assistance program as required by 40 O.S. §561.
(7) Any evidence relevant to the adjudication of questions of fact or law regarding drug or alcohol testing that may be an issue in the claim for unemployment benefits.
[Source: Added at 21 Ok Reg 779, eff 5-1-04]
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PART 11 – FILING CLAIMS - NOTICE
240:10-3-50. Employers who shall receive a notice of determination
The phrase to each other employer who timely filed a written objection to the claim [40:2-507] refers to "each employer" involved in the claim for benefits. Thus both last and base period employers must timely file a written objection to the claim in order to have a right to receive a notice of a determination upon a claim.
240:10-3-51. Information to be posted
Each employing unit subject to the Employment Security Act of 1980 shall post and maintain in places readily accessible to individuals in its employ a notice explaining the worker's rights to unemployment benefits and how to make a claim for benefits pursuant to 40 O.S. Section 2-502. Notices are to be placed in locations easily accessible by employees and where it is likely for employees to see and read the notice. The notice may be posted electronically on an employer Internet website, or periodically distributed through e-mail if that can be shown to be the most likely method of reaching the employees with the notice. Notice forms are to be furnished by the Commission through the Commission's Internet website without cost to the employer.
[Source: Amended at 27 Ok Reg 821, eff 5-1-10]
240:10-3-52. Information to separated worker
(a) Each employing unit shall upon request furnish each worker separated from its employ (permanently or for an indefinite period, or for an expected duration of seven (7) or more days) at the time of such separation, or if delivery is impossible or impracticable, then by mail:
(1) a copy of the Commission's booklet entitled "Rights and Responsibilities of the Unemployed Workers (OES-341);" and
(2) sufficient identification of the employer's name, address and account number under which the worker's wages were, or will be, reported to the Commission.
(b) Mailing shall be to the last known address of the employee as recorded in the employer's personnel records.
[Source: Amended at 24 Ok Reg 1233, eff 5-25-07]
240:10-3-53. Third party administrators – filing requirement
Any third party administrator that files more than 30 protests in any month during the previous calendar year in response to benefit claim notices, on behalf of its client employers, shall file the protests by telefax only to the telefax number set out on the Notice of Benefit Claim form. The Oklahoma Employment Security Commission shall not accept hand
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delivery, postal mailing, or e-mailing of protests by third party administrators meeting the volume of filings set forth above.
[Source: Added at 25 Ok Reg 1623, eff 6-12-08]
PART 12 – INTEREST WAIVER FOR BENEFIT OVERPAYMENTS
240:10-3-60. Definitions
The following words and terms, when used in this Part, shall have the following meaning, unless the context clearly indicates otherwise:
"Interest" means the interest that accrues in a claimant's overpayment pursuant to 40 O.S. Section 2-613.
"Overpayment" means an unemployment benefit overpayment established pursuant to 40 O.S. Section 2-613.
[Source: Added at 20 Ok Reg 833, eff 5-12-03]
240:10-3-61. Filing a request for waiver
(a) A claimant who wants a waiver of interest that has accrued in his or her overpayment, must make a request for waiver in writing and file it with the Oklahoma Employment Security Commission.
(b) Filing must be accomplished by mailing or delivering the request document to the Benefit Payment Control Unit of the Oklahoma Employment Security Commission at the following address: Oklahoma Employment Security Commission, Benefit Payment Control Unit, P. O. Box 52925, Oklahoma City, OK 73152-2925.
(c) A request for waiver is deemed filed on the date the request letter is received by the Oklahoma Employment Security Commission.
[Source: Added at 20 Ok Reg 833, eff 5-12-03]
240:10-3-62. Three year limitation, assessment of penalty and accrual of interest
(a) No interest can be waived if it accrued at a time more than three years before the date of the filing of the request letter.
(b) On appeal, the Appeal Tribunal shall summarily dismiss any request for waiver to the extent that the request pertains to interest that accrued at a time more than three years before the date of the filing of the request letter.
(c) Interest accrues on the principle amount of the overpayment on the first day of each month.
[Source: Added at 20 Ok Reg 833, eff 5-12-03]
240:10-3-63. Request letter
(a) The request letter prepared by the claimant must contain the following information:
(1) Claimant's name, address and telephone number
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(2) Claimant's Social Security number or claim ID number
(3) The time period for which interest is requested to be waived or the amount of interest requested to be waived.
(4) A statement of all reasons the claimant will rely on to explain why interest should be waived.
(b) The request letter must be signed by the claimant.
(c) If the claimant is represented by an attorney, the name, address, telephone number and Oklahoma Bar Association number of the attorney must also be included in the request letter.
(d) The claimant must attach to the request letter a copy of all notices, statements, determinations, correspondence, or any other documents relevant to the request for waiver.
[Source: Added at 20 Ok Reg 833, eff 5-12-03; Amended at 24 Ok Reg 1233, eff 5-25-07]
240:10-3-64. Initial determination
(a) Upon receipt of the request letter, the Oklahoma Employment Security Commission will make the initial determination regarding whether or not a waiver should be allowed based on the information supplied by the claimant and the records of the Oklahoma Employment Security Commission on the overpayment in question.
(b) The Oklahoma Employment Security Commission will set forth its determination in writing and mail it to the claimant at the claimant's last known address.
[Source: Added at 20 Ok Reg 833, eff 5-12-03]
240:10-3-65. Appeal of initial determination
(a) In order to appeal the determination of the Oklahoma Employment Security Commission, the claimant must file an appeal within 10 days of the date the determination letter was mailed to the claimant pursuant to 40 O.S. Section 2-603.
(b) The appeal document or communication must contain the following:
(1) The name, address and telephone number of the claimant.
(2) The claimant's Social Security number or claim ID.
(3) The date of the determination letter issued by the Oklahoma Employment Security Commission.
(4) Signature of the claimant.
(c) The appeal may be filed by any method allowed in 40 O.S. Section 1-224 or by telecommunication.
(d) If any claimant fails to file his or her appeal letter within the 10 days provided for in subsection (a) of this Section, then the determination of the Oklahoma Employment Security Commission shall be final, and no appeal shall thereafter be allowed.
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[Source: Added at 20 Ok Reg 833, eff 5-12-03; Amended at 24 Ok Reg 1233, eff 5-25-07]
240:10-3-66. Jurisdiction and authority of Appeal Tribunal
(a) The Appeal Tribunal of the Oklahoma Employment Security Commission shall have jurisdiction to hear all cases involving the appeals of determinations regarding claimant's requests for waiver of interest.
(b) The Appeal Tribunal shall have complete authority and discretion to determine whether any part or all of the interest at issue should be waived.
[Source: Added at 20 Ok Reg 833, eff 5-12-03]
240:10-3-67. Appeal Tribunal hearing
After the claimant's appeal has been filed, a hearing will be set before the Appeal Tribunal to allow the claimant and the Commission an opportunity to present their arguments for or against the waiver. The notice of the hearing and the procedure regarding the conduct of the hearing shall be in accordance with, and governed by, the Oklahoma Employment Security Commission rules concerning Appeal Tribunal procedure found in OAC 240:10-13.
[Source: Added at 20 Ok Reg 833, eff 5-12-03]
240:10-3-68. Appeal
Appeal of the decision of the Appeal Tribunal shall be governed by the Oklahoma Employment Security Commission rules found in Part 11 of OAC 240:10-13 and by the appeal provisions of the Employment Security Act of 1980 found at 40 O.S. Sections 2-605 through 2-609.
[Source: Added at 20 Ok Reg 833, eff 5-12-03]
240:10-3-69. Waiver to be denied
A waiver of interest will not be granted if it is determined that the claimant received an overpayment of benefits through fraud.
[Source: Added at 20 Ok Reg 833, eff 5-12-03]
PART 13 - APPEALS [Reserved]
PART 15 - EXTENDED BENEFITS [Reserved]
PART 17 - CHILD SUPPORT [Reserved]
SUBCHAPTER 5 – CONTRIBUTIONS
PART 1 – GENERAL PROVISIONS
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240:10-5-1. Purpose
This Subchapter establishes procedures for payment of contributions, collection of taxes and judicial review of assessment of taxes and employer tax rates.
240:10-5-2. Definitions
The following words and terms, when used in this Chapter, shall have the following meaning, unless the context clearly indicates otherwise:
"Lessor Employing Unit" is defined in 40 O.S. §1-209A(a). The terms "employee leasing company" and "staff leasing company" shall have the same meaning as the term "lessor employing unit."
"Multiple Worksite Employer" means an employer that operates its business at more than one permanent location.
"Predecessor" or "Predecessor Employer" means the employer who operated a business entity before it was acquired by the successor or acquiring employer.
"Successor" or "Successor Employer" means the acquiring employer of a business entity formerly operated by a predecessor employer.
"Substantially All" as used in the context of 40 O.S. §3-111, means that the successor or acquiring employer has acquired the predecessor's trade, employees, organization, business, or assets to such an extent that the predecessor is unable to continue in business.
[Source: Added at 14 Ok Reg 2909, eff 7-11-97; Amended at 17 Ok Reg 1595, eff 5-25-00; Amended at 23 Ok Reg 885, eff 5-15-06]
240:10-5-3. Notice of change of address, organization or ownership
Any employer who has a change of address or a change of organization or transfer of ownership, or who sells or otherwise disposes of a part or all of its business or assets, shall give written notice to the Commission immediately following the effective date of such change, sale or disposition. [40:4–302]
[Source: Amended at 15 Ok Reg 1496, eff 5-11-98]
240:10-5-4. Surety bond for lessor employing units
(a) Statute. This Section applies to the application for, and issuance of, the Surety Bond for lessor employing units that is provided for in 40 O.S. 1991 §1-209A.
(b) Form of bond. The Surety Bond shall be on a form prescribed by the Oklahoma Employment Security Commission. Forms can be obtained from the Contributions Department of the Oklahoma Employment Security Commission at the following address: Oklahoma Employment Security Commission, Contributions Department, P.O. Box 52003, Oklahoma City, Oklahoma 73152-2003.
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(c) Corporate surety. The Surety Bond shall be issued by a corporate surety authorized to do business in this state by the Oklahoma Insurance Department.
(d) Bond application. Any lessor employing unit that desires to purchase a Surety Bond must make its initial application with the Commission each year before March 1. The initial application and renewal application shall be on a form prescribed by the Commission. The application forms can be obtained at the address listed in (b) of this Section. Completed application forms shall be returned to the same address.
(e) Client list. The lessor employing unit wishing to apply for a bond or a bond renewal shall supply with their application a list of Oklahoma clients that will include the client's name, federal identification number, and the number of employees the lessor employing unit is leasing to each client lessee.
(f) Term of bond. The term of the Surety Bond shall be a one year period from April 1 of any given year to March 31 of the succeeding year. Any bond issued on a date other than April 1 shall extend from the date of issuance until the next March 31st, at which time the bond will expire.
(g) Amount of bond. The Surety Bond shall be in an amount equivalent to the contributions for which the lessor employing unit was liable in the last calendar year in which it accrued contributions, or in the sum of one hundred thousand dollars ($100,000.00), which ever is greater. The exact amount of the bond will be certified by the Oklahoma Employment Security Commission upon receipt of the initial application or renewal application for a bond from the lessor employing unit. The certification shall be mailed to the corporate surety that will be issuing the bond.
[Source: Added at 11 Ok Reg 1601, eff 5-12-94; Amended at 26 Ok Reg 1375, eff 5-12-95]
240:10-5-5. Coverage of Indian tribes [EXPIRED]
[Source: Added at 18 Ok Reg 3432, eff 7-1-01 through 7-14-02 (emergency)1]
EDITOR’S NOTE: 1This emergency action expired without being superseded by a permanent action. Upon expiration of an emergency action enacting a new Section, the Section is no longer effective. Therefore, on 7-15-02 (after the 7-14-02 expiration of this emergency action), Section 240:10-5-5 was no longer effective. For the official text of the emergency rule that was in effect from 7-1-01 through 7-14-02, see 18 Ok Reg 3432.
PART 3 - RATES
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240:10-5-10. Payment of contributions
(a) Date payment due. Contributions shall become due and be paid on or before the last day of the month following the calendar quarter to which they relate, provided that:
(1) If, under the provisions of 40 O.S. Section 3-306, the Commission shall declare the period for which any contribution may become due to have terminated for an employer, and assesses the contributions for such period, such contributions shall immediately become due and be paid by such employer; and
(2) If an employing unit has not previously qualified as an employer under the OES Act and first qualifies as an employer during a calendar year, the employing unit shall pay contributions for all past periods of that year for which said employer is liable for the payment of contributions, on or before the due date for that quarter in which such employing unit becomes an employer subject to the OES Act. [40:3-102]
(b) Date of receipt defined.
(1) Payments of contributions received through the mail shall be deemed to have been received as of the date shown by the postmark on the envelope properly addressed to the Commission's office and containing such payment.
(2) Payment of contributions received through an electronic fund transfer system shall bedeemed to be have been received by the Commission on the date on which the electronic payment was authorized for immediate payment to the Oklahoma Employment Security Commission.
(3) All other payments of contributions shall be deemed to have been received on the date on which payments are received by a representative of the Commission.
[Source: Amended at 24 Ok Reg 1233, eff 5-25-07]
240:10-5-11. Subject employer acquiring the experience rating account of another employer
When any employing unit acquires the experience rating account of one or more employers under the provisions of 40 O.S. Section 3-111 or 3-111.1, and the employing unit was an employer subject to the Employment Security Act of 1980 at the time of the acquisition, the contribution rate for the acquiring employing unit after the acquisition shall be determined as follows:
(1) The compensation experience of the successor employer and the predecessor, or predecessors, shall be consolidated for the experience period immediately preceding the acquisition, and the Benefit Wage Ratio shall be computed on the total experience of all the employers.
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(2) The Benefit Wage Ratio so computed shall be used to determine the successor's contribution rate for the remainder of the calendar year in which the acquisition occurred. The contribution rate so established shall be applicable to the successor employer beginning with the first day of the calendar quarter in which the acquisition occurred.
[Source: Amended at 12 Ok Reg 1375, eff 5-12-95; Amended at 22 Ok Reg 733, eff 5-15-05; Amended at 23 Ok Reg 885, eff 5-15-06]
240:10-5-12. Nonsubject entity acquiring the experience rating account of an employer
(a) One employer acquired. When any employing unit acquires the experience rating account of an employer under the provisions of 40 O.S. Section 3-111 or 3-111.1, and the employing unit was not an employer subject to the Employment Security Act of 1980 prior to the acquisition, the employing unit shall acquire the contribution rate of the employer for the entire calendar year in which the acquisition occurred.
(b) Two or more employers acquired. When any employing unit acquires the experience rating account of two or more employers under the provisions of 40 O.S. Sections 3-111 or 3-111.1, and the employing unit was not an employer subject to the Employment Security Act of 1980 prior to the acquisition, the contribution rate for the employing unit shall be determined by consolidating the compensation experience of the two or more employers acquired for the three calendar years immediately preceding the acquisition, and the Benefit Wage Ratio computed on the total experience of all the employers so acquired. The Benefit Wage Ratio so computed shall be used to determine the successor's contribution rate for the calendar year in which the acquisition occurred.
(c) An employing unit that was not an employer subject to the Employment Security Act of 1980 prior to acquiring the predecessor employer shall not be allowed to acquire the experience history or contribution rate of the predecessor employer if the Commission finds that the employing unit acquired the business solely or primarily for the purpose of obtaining a lower contribution rate.
[Source: Amended at