Bill Summary for H 813 (2011-2012)

Summary date: 

Apr 8 2011

Bill Information:

View NCGA Bill Details2011-2012 Session
House Bill 813 (Public) Filed Wednesday, April 6, 2011
TO REFORM THE EMPLOYMENT SECURITY LAWS OF NORTH CAROLINA BY CREATING THE DIVISION OF EMPLOYMENT SECURITY WITHIN THE DEPARTMENT OF COMMERCE, TRANSFERRING THE FUNCTIONS OF THE EMPLOYMENT SECURITY COMMISSION TO THAT DIVISION, MAKING THE DIVISION SUBJECT TO RULE MAKING UNDER ARTICLE 2 OF CHAPTER 150B OF THE GENERAL STATUTES, AND BY MAKING OTHER MODIFICATIONS AND CONFORMING CHANGES TO ALIGN THE EMPLOYMENT SECURITY FUNCTIONS OF STATE GOVERNMENT UNDER THE DIRECT LEADERSHIP OF THE SECRETARY OF COMMERCE.
Intro. by Howard.

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Bill summary

Transfer of Employment Security Commission Functions. Transfers the statutory authority, powers, duties, functions, records, personnel, property, and unexpended balances of all funds of the Employment Security Commission (ESC) to the Department of Commerce (Department), as a Type I transfer. Specifies that any previous assignment of duties of a quasi-legislative and quasi-judicial nature by the Governor or General Assembly will continue to be valid under the transfer. States that, except as otherwise provided in this act, each commission, board, office, bureau, or other subunit of state government transferred to the Secretary of Commerce and the Department of Commerce, Division of Employment Security (DES), is a continuation of the former entity for purposes of succession to all rights, powers, duties, and obligations of the former entity. All references to the former entity are now directives to the Secretary of Commerce and the DES. Specifies that no action or proceeding pending on January 1, 2012, brought by or against the ESC will be affected by this act, but the same action or proceeding may be prosecuted of defended by DES, with the Secretary or Department of Commerce substituted as required. Provides that any business or other matter conducted by any state program or office or contract transferred by this act to the Employment Safety and Security Commission pending on the date this act becomes effective may be conducted and completed by the Employment Safety and Security Commission in the same manner as if conducted by the original program, office, commissioners, or directors. Amends GS 143B-431 to add employment security and the administration of unemployment insurance to the list of Department functions. Deletes the ESC from the list of Department agencies. Amends GS 143B-433, by adding the Division of Employment Security to the list of Department agencies and deleting the Employment Security Commission. Makes a conforming change to GS 143B-343(c). Amends GS 143B-438.10(b)(1) to include the Assistant Secretary of Commerce in charge of the DES (rather than the Chair of the ESC) as a member on the Commission on Workforce Development. Makes conforming changes by substituting DES for ESC in GS 143B-438.16 and 143B-438.17(c). Deletes the ESC from the list of agencies exempted under the Administrative Procedure Act in GS 150B-1(c), and amends GS 150B-1(e) to exempt Department hearings and appeals authorized under GS Chapter 96 (DES) from the contested case provisions. Makes the DES subject to the rule-making provisions in Article 2A of GS Chapter 150B, and specifies that any existing rule not readopted by December 31, 2012 will expire.
Amendments and Conforming Changes to the Employment Security Laws. Amends various provisions of GS Chapter 96 (Employment Security Law) to substitute the Department of Commerce, Division of Employment Security (DES) for the Employment Security Commission (ESC), and to make conforming changes. Deletes all provisions of GS 96-3 and instead provides that DES is created within the Department of Commerce to administer GS Chapter 96 under the supervision of the Assistant Secretary of Commerce through the Employment Security Section, which will administer employment services, and the Employment Insurance Section, which will administer unemployment taxation and assessment. Amends GS 96-4(a) to state that it is the duty of the Secretary of the Department to administer GS Chapter 96 and to appoint an Assistant Secretary to implement employment security laws and to oversee the DES. Directs the Governor to appoint a three person Board of Review to determine appeals policies and procedures and to hear appeals arising from the decisions and determinations of the DES sections. Specifies board membership. Amends GS 96-4(d) by deleting all provisions and instead provides that rules adopted to implement the employment security laws will be made under the Administrative Procedure Act. Enacts new subsection (j) to direct the Assistant Secretary to appoint hearing officers or appeals referees to hear contested matters arising from the DES sections, with their appeals heard by the Board of Review. Makes additional conforming, clarifying, and organizational changes to GS 96-4.
Makes conforming changes to various provisions of GS Chapter 96, by substituting references to the ESC with references to the DES, and references to the Commission with references to the Secretary, as appropriate and as applicable. Adds definitions for Department, Division or DES, EIS, ESS, and Secretary to GS 96-8. Repeals GS 96-8(2) (definition for the ESC). Amends GS 96-10 and 96-11 to substitute references to the ESC with references to the DES or to the Department of Revenue, as applicable. Amends GS 96-13 (benefit eligibility conditions) to make conforming changes; amends GS 96-13(a)(3) (ability and availability for work), to provide that, for the purposes of that subdivision, no individual is deemed to be available for work during any week that the person is incarcerated or has received notice to report or is otherwise detained in any jail or penal institution, and that an individual is exempted for any week that the individual participates in the Trade Jobs for Success initiative. Amends GS 96-14(2) (pertaining to disqualification for benefits) by deleting the current definition for misconduct connected with the work and instead defining it as intentional acts or omissions evidencing disregard of an employer’s interest or standards of behavior by which the employer has a right to expect or has explained orally or in writing to an employee or evidencing carelessness or negligence of such degree as to manifest equal disregard. Clarifies that “discharge for misconduct with the work” includes, among other things, separation initiated by an employer for violating the employer’s written alcohol or illegal drug policy, being terminated or suspended from employment after arrest or conviction for an offense involving listed crimes, any physical violence as specified, inappropriate comments or behavior as detailed, theft in connection with the employment, forging or falsifying documents or data, violation of an absenteeism policy, refusing to perform assigned tasks, and the failure to perform other duties as evidenced by specified written reprimands. Deletes provisions in GS 96-15(e) and instead permits the Board of Review to, on its own motion, affirm, modify, or set aside any decision of an appeals referee, hearing officer, or other employee assigned to make a decision, as detailed. Amends GS 96-15(h), clarifying that any decision of the DES in the absence of judicial review or in the absence of an interested party filing a request for reconsideration, will become final 30 days after the earlier of the date of notification or the notification mailing. Provides that questions regarding the requirements of subsection (h) will be determined by the superior court.
Makes conforming changes to various provisions of GS Chapter 96 to reference the Employment Security Section rather than the Employment Service Division, where applicable. Makes conforming changes to various Chapters of the General Statutes to substitute references to ESC and related terms with references to DES and related terms, as applicable and as appropriate. Makes additional clarifying, conforming, and technical changes.
Additional Matters. Requires the Board of Review established by this act to be appointed, with staff assigned, by October 1, 2011. Directs the Secretary of the Department of Commerce to make a detailed written report to specified legislative entities on the consolidation of the ESC and on any recommended changes, by June 30, 2012. Authorizes the Revisor of Statutes to make additional conforming statutory changes to delete references to ESC and derivatives and substitute with references to DES.

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