Part 20.
TEXAS WORKFORCE COMMISSION
Chapter 815.
UNEMPLOYMENT INSURANCE
The Texas Workforce Commission (Commission) adopts amendments,
Subchapter B, Benefits, Claims, and Appeals, §815.20
Subchapter C, Tax Provisions, §815.107 and §815.109
The Commission adopts the following new sections of Chapter 815 related
to Unemployment Insurance,
without
changes,
as published in the December 1, 2006, issue of the
Texas Register
(31 TexReg 9686):
Subchapter C, Tax Provisions, §§815.116, 815.134, and 815.135
Subchapter D, Farm and Ranch Labor, §815.150
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS WITH COMMENTS AND RESPONSES
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The purpose of the adopted Chapter 815 rules change is to:
--implement House Bill (HB) 3250, enacted by the 79th Texas Legislature,
Regular Session (2005), which amends Title IV of the Texas Labor Code, the
Texas Unemployment Compensation Act (TUCA), Chapter 204, Subchapter E, Acquisition
of Experience-Rated Employer, by limiting the conditions under which the transfer
of Unemployment Insurance (UI) compensation experience between business entities
may occur; and requiring the Commission to establish, by rule, procedures
to identify the transfer or acquisition of a business for the purposes of
identifying State Unemployment Tax Act (SUTA) dumping;
--provide clear direction for UI claimants and employers, without creating
an undue bureaucratic burden in navigating the UI and Tax systems; and
--ensure operation of efficient, cost-effective systems that fulfill the
requirements of state and federal law.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS WITH COMMENTS AND RESPONSES
(Note: Minor, nonsubstantive, editorial changes are made that do not change
the meaning of the rules and, therefore, are not discussed in the Explanation
of Individual Provisions.)
SUBCHAPTER B. BENEFITS, CLAIMS, AND APPEALS
The Commission adopts amendments to Subchapter B, as follows:
§815.20. Claim for Benefits
Section 815.20 adds Internet filing as a method for unemployed individuals
to file UI claims and specifies that the current restrictions to designated
hours and days of claim filing do not apply to online initial claim filers
or those who request payment of benefits online because the Internet is available
24 hours a day.
SUBCHAPTER C. TAX PROVISIONS
The Commission adopts amendments to Subchapter C, as follows:
§815.107. Reports Required and Their Due Dates
Section 815.107(a) specifies that employers may request, and the Agency
may grant, a hardship exemption from filing reports and formats in the required
format. The Agency does not intend to implement specific requirements for
how the hardship exemption request must be submitted by an employer. The Agency
will accept the notification by telephone or in writing, and will develop
a system to provide confirmation numbers to employers who request hardship
exemptions.
Section 815.107(a)(3)(A)(i) lowers the existing threshold from 250 or more
employees to 10 or more employees for employers who must file quarterly benefit
wage credit reports on magnetic or electronic media. This rule change is effective
July 1, 2007. The Agency will continue ongoing notification initiatives to
ensure that entities covered by this new threshold understand that compliance
will be required following the effective date of the rule change.
Section 815.107(a)(3)(A)(ii) lowers the existing threshold from 250 or
more employees to 10 or more employees for other entities, including agents
reporting on behalf of multiple employers, who must file quarterly benefit
wage credit reports on magnetic or electronic media. This rule change is effective
July 1, 2007. The Agency will continue ongoing notification initiatives to
ensure that entities covered by this new threshold understand that compliance
will be required following the effective date of the rule change.
Section 815.107(a)(3)(B) lowers the existing threshold from less than 250
employees to less than 10 employees for employers who may file quarterly benefit
wage credit reports on magnetic or electronic media. This rule change is effective
July 1, 2007. The Agency will continue ongoing notification initiatives to
ensure that entities covered by this new threshold understand that compliance
will be required following the effective date of the rule change.
New §815.107(a)(3)(D) specifies that a quarterly benefit wage credit
report filed in an approved medium shall contain both a wage credit report
and a summary report. This rule change is effective July 1, 2007. The Agency
will continue ongoing notification initiatives to ensure that entities covered
by this new threshold understand that compliance will be required following
the effective date of the rule change.
Comment: One commenter expressed concern that the proposed rule change
would require employers with large numbers of employees or with high staff
turnover to enter quarterly reports manually, increasing the likelihood of
typographical errors in the report. The commenter indicated that the rule
change would be acceptable if TWC had an electronic means of transferring
required elements of the report from the employer's computer systems to TWC's
computer systems.
Response: The Commission agrees that it is impractical to enter quarterly
reports manually. Therefore, the Agency provides a free program-Quickfile-to
enable employers to upload data online. Quickfile is available for download
from the Agency's Web site at www.twc.state.tx.us/ui/tax/quickfile.html and
allows for the upload of report elements in a variety of commonly used data
formats. The Agency's Tax Department will provide information to employers
statewide about the rule change as well as their reporting options.
§815.109. Payment of Contributions and Reimbursements
Section 815.109(f) removes the 60-day limit on extensions past the due
date for payment of contributions due.
Removal of the 60-day limit on extensions provides the Agency with the
flexibility necessary to respond to employers facing extreme circumstances,
such as natural disasters, and is consistent with the corresponding extension
provisions included in §815.107(b)(3).
Section 815.109(g) requires all agents or other entities making a payment
on behalf of an employer to furnish an allocation list on magnetic or electronic
media using a format prescribed by the Agency. Currently, agents or other
entities making a payment on behalf of 20 or more employers must furnish an
allocation list on magnetic or electronic media.
The number of service agents submitting remittance allocation lists for
their clients using a paper list has diminished over the years; only a very
small number still submit the list in this manner. The most efficient and
widely used process, for both the Agency and the service agent, is an electronic
submission of the allocation list with the electronic wage reports. This change
is consistent with other initiatives to increase use of technology by all
customers conducting business with the Agency.
§815.116. Identification and Tracking of Transfers and/or Acquisitions
of Businesses
New §815.116 implements the portion of HB 3250 that requires the Commission,
by rule, to establish procedures to identify the transfer or acquisition of
a business.
New §815.116(a) states that the Agency will employ an electronic method
of tracking the reporting of employees and wages to help determine instances
of improper reporting by employers.
New §815.116(b) provides that to aid the Agency in its determination,
upon request and as determined necessary by the Agency, employers shall provide
information sufficient to enable the Agency to determine:
(1) the status of the employing unit under investigation and whether the
employer is liable under the Act;
(2) the proper employer of the employees reported and verify whether the
wages are reported by the proper entity;
(3) the relationship between the predecessor or successor entity and whether
a mandatory transfer of compensation experience is in order; and
(4) the correct calculation of the tax rate assigned to the employer.
§815.134. Employment Status: Employee or Independent Contractor
New §815.134 clarifies that, for the purposes of determining employee
or independent contractor status, the Agency shall use the guidelines contained
in §821.5 of this title.
§815.135. Voluntary Election by Employers
New §815.135(a) specifies that employers electing coverage under Chapter
206 of TUCA shall make the election in writing on a form specified by the
Agency or by a prescribed electronic equivalent.
New §815.135(b) is added to specify that employers electing to pay
reimbursements shall make the election in writing on a form specified by the
Agency or by a prescribed electronic equivalent, and in compliance with Chapter
205, Subchapter A, of TUCA.
SUBCHAPTER D. FARM AND RANCH LABOR
The Commission adopts new Subchapter D, as follows:
§815.150. Definition of Terms
New §815.150 defines terms relating to farm and ranch labor when used
in implementing TUCA §§201.028, 201.047, and 204.009.
New §815.150(1) defines "agricultural association" as a nonprofit
or cooperative association of farmers, growers, or ranchers incorporated or
qualified under state law, which recruits, solicits, hires, employs, furnishes,
or transports migrant or seasonal agricultural workers.
New §815.150(2) defines "agricultural employer" as an individual who
owns or operates a farm, ranch, processing establishment, cannery, gin, packing
shed, or nursery or who produces or conditions seed, and who either recruits,
solicits, hires, employs, furnishes, or transports migrant or seasonal agricultural
workers.
New §815.150(3) defines "farm labor contracting activity" as the recruiting,
soliciting, hiring, employing, furnishing, or transporting of migrant or seasonal
agricultural workers.
New §815.150(4) defines "farm labor contractor" as an individual,
other than an agricultural employer, an agricultural association, or an employee
of an agricultural employer or agricultural association, who, for any money
or other valuable consideration paid or promised to be paid, performs any
farm labor contracting activity.
New §815.150(5) defines "farm and ranch labor" as all services performed:
(A) on a farm or ranch in the employ of an individual in connection with
cultivating the soil; raising or harvesting an agricultural or horticultural
commodity, including the raising, shearing, feeding, caring for, training,
and management of livestock, bees, poultry, and fur bearing wildlife; or
(B) in the employ of the owner, tenant, or other operator of a farm or
ranch, in connection with the operation, management, conservation, improvement,
or maintenance of such farm or ranch and its tools and equipment, if the major
part of such service is performed on a farm or ranch.
New §815.150(6) defines "labor agent" as an individual in Texas who
for a fee offers, attempts to procure, or procures employment for employees;
or without a fee offers, attempts to procure, or procures employment for common
or agricultural workers; or any individual who for a fee attempts to procure
or procures employees for an employer; or without a fee offers or attempts
to procure common or agricultural workers for employers; or any individual,
regardless of whether a fee is received or due, who offers, attempts to supply,
or supplies the services of common or agricultural workers to any individual.
New §815.150(7) defines "migrant worker" as an individual who is employed
in farm or ranch labor of a seasonal or temporary nature and who is required
to be absent overnight from his or her permanent place of residence, provided
the individual is not a temporary nonimmigrant alien who is authorized to
work in agricultural employment in the United States under 8 U.S.C. §1101(a)(15)(H)(ii)(a)
and §1184(c).
New §815.150(8) defines "orchard" as a farm devoted primarily to the
planting, cultivating, growing, or harvesting of fruits or nuts.
New §815.150(9) defines "other farm or ranch laborer" as an individual
employed in farm or ranch labor or who is neither a seasonal worker nor a
migrant worker.
New §815.150(10) defines "seasonal worker" as an individual who is
employed in farm or ranch labor of a seasonal or temporary nature and is not
required to be absent overnight from his or her permanent place of residence,
provided the individual is not a temporary nonimmigrant alien who is authorized
to work in agricultural employment in the United States under 8 U.S.C. §1101(a)(15)(H)(ii)(a)
and §1184(c).
New §815.150(11) defines "truck farm" as a farm on which fruits, garden
vegetables for human consumption, potatoes, sugar beets, or vegetable seeds
are produced for market.
New §815.150(12) defines "vineyard" as a farm devoted primarily to
the planting, cultivating, growing, or harvesting of grapes.
The Agency hereby certifies that the adopted rules have been reviewed by
legal counsel and found to be within the Agency's legal authority to adopt.
Subchapter B. BENEFITS, CLAIMS AND APPEALS
40 TAC §815.20
The amendment is adopted under Texas Labor Code §301.0015
and §302.002(d), which provide the Texas Workforce Commission with the
authority to adopt, amend, or repeal such rules as it deems necessary for
the effective administration of Agency services and activities.
The amendment affects Texas Labor Code, Title 4.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 30, 2007.
TRD-200700255
Reagan Miller
Deputy Director for Workforce and UI Policy
Texas Workforce Commission
Effective date: February 19, 2007
Proposal publication date: December 1, 2006
For further information, please call: (512) 475-0829
Subchapter C. TAX PROVISIONS