2006 Oklahoma Code - Title 40. — Labor
OKLAHOMA STATUTES
TITLE 40.
LABOR
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§401. Commissioner of Labor Powers and duties.
A. The Commissioner of Labor shall be the Chief Executive Officer of the Department of Labor, and shall supervise the work of that Department.
B. It shall be the duty of the Commissioner of Labor to:
1. foster, promote, and develop the welfare of the wage earners of this state;
2. improve working conditions of the wage earners;
3. advance opportunities of wage earners for profitable employment; and
4. carry into effect all laws in relation to labor enacted by the Legislature for which responsibility is assigned to the Commissioner of Labor.
C. The Commissioner of Labor may administer oaths, issue subpoenas for the attendance of witnesses and take testimony in all matters relating to the proper enforcement of all laws over which the Commissioner has supervision pursuant to the provisions of the laws of this state.
R.L.1910, § 3703; Laws 191011, c. 128, p. 281, § 1; Laws 1980, c. 159, § 7, emerg. eff. April 2, 1980; Laws 1991, c. 122, § 1, eff. July 1, 1991.
§40-1.1. Reciprocal agreements with labor departments of other states - Actions upon claims arising in other states.
A. The Commissioner of Labor may enter into reciprocal agreements with the Labor Department or corresponding agency of another state, or with the person, board, officer, or commission authorized to act on behalf of that department or agency having jurisdiction for the collection of wages unlawfully withheld from employees by out-of-state employers and for the collection of other debts lawfully owed to the State Department of Labor.
B. The Commissioner of Labor shall, upon the written request of the Department of Labor or other corresponding agency of any other state or of any person, board, officer or commission of such state authorized to act for and on behalf of such labor department or corresponding agency, maintain actions in the courts of this state upon assigned claims for wages, judgments and demands arising in such other state in the same manner and to the same extent that such actions by the Commissioner of Labor are authorized when arising in this state; provided, however, that such actions may be commenced and maintained only in those cases where such other state by appropriate legislation or by reciprocal agreement extends a like comity to cases arising in the state.
Added by Laws 1991, c. 122, § 2, eff. July 1, 1991.
§40-1-101. Short title.
SHORT TITLE. This act shall be known and may be cited as the Employment Security Act of 1980.
Added by Laws 1980, c. 323, § 1-101, eff. July 1, 1980.
§401102. Purpose of Act.
(1) Whoever makes a false statement or representation knowing it to be false or knowingly fails to disclose a material fact, to obtain or increase any benefit or other payment under this act or under the unemployment compensation law of any state or of the federal government, either for himself or for any other person, shall be guilty of a misdemeanor and shall be punished by a fine of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00), or by imprisonment for not longer than ninety (90) days, or by both such fine and imprisonment; and each such false statement or representation or failure to disclose a material fact shall constitute a separate offense for each week of benefits.
(2) Upon conviction sentences may be suspended or upon a plea of guilty judgment and sentencing may be deferred only upon the condition of full restitution to the Commission of all benefits so obtained or the excess of any benefits so increased.
Laws 1980, c. 323, § 1102, eff. July 1, 1980.
§40-1-103. Declaration of state public policy.
DECLARATION OF STATE PUBLIC POLICY. As a guide to the interpretation and application of this act, the public policy of this state is declared to be as follows: Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state. Unemployment is therefore a subject of general interest and concern which requires appropriate action by the Legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this greatest hazard of our economic life. This objective can be furthered by operating free public employment offices in affiliation with nationwide system of employment services, by devising appropriate methods for reducing the volume of unemployment and by the systematic accumulation of funds during periods of employment, thus maintaining purchasing power and limiting the serious social consequences of unemployment. The Legislature, therefore, declares that in its considered judgment the public good, and the general welfare of the citizens of this state require the enactment of this measure, under the police power of the state for the establishment and maintenance of free public employment offices and for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.
Added by Laws 1980, c. 323, § 1-103, eff. July 1, 1980.
§40-1-104. Saving clause.
SAVING CLAUSE. A. The Legislature reserves the right to amend or repeal all or any part of the Employment Security Act at any time and there shall be no vested private right of any kind against such amendment or repeal. All the rights, privileges, or immunities conferred by the Employment Security Act, or by acts done pursuant thereto, shall exist subject to the power of the Legislature to amend or repeal the Employment Security Act at any time.
B. If any provision of the Employment Security Act necessary for certification for administrative grants under the Social Security Act or tax credits under the Federal Unemployment Tax Act are determined to be inconsistent with federal requirements by a delegate of the Secretary of Labor, the Commission, with the concurrence of the Oklahoma Attorney General, is authorized to administer such provisions consistently with federal requirements until the Legislature has an opportunity to enact appropriate legislation during its next regularly scheduled session.
Added by Laws 1980, c. 323, § 1-104, eff. July 1, 1980. Amended by Laws 1982, c. 304, § 1, operative Oct. 1, 1982.
§40-1-106. Section captions.
SECTION CAPTIONS. Section captions are parts of this act.
Added by Laws 1980, c. 323, § 1-106, eff. July 1, 1980.
§40-1-107. Construction against implicit repeal.
CONSTRUCTION AGAINST IMPLICIT REPEAL. This act being a general act intended as a unified coverage of its subject matter, no part of it shall be deemed to be impliedly repealed by subsequent legislation if such construction can reasonably be avoided.
Added by Laws 1980, c. 323, § 1-107, eff. July 1, 1980.
§40-1-108. Indian tribes or tribal units - Benefits - Contributions or payments - Extended benefits - Delinquencies - No waiver of sovereign immunity.
A. The term "employer" shall include any Indian tribe for which service in employment is performed, as defined in the Employment Security Act of 1980.
B. The term "employment" shall include service performed in the employ of an Indian tribe, as defined in the Federal Unemployment Tax Act (FUTA), 26 U.S.C., Section 3306(u), provided such service is excluded from "employment" as defined in FUTA solely by reason of 26 U.S.C., Section 3306(c)(7), and is not otherwise excluded from employment under the Employment Security Act of 1980. For purposes of this section, the exclusions from employment in subparagraphs (c) and (e) of paragraph (7) of Section 1-210 of this title shall be applicable to services performed in the employ of an Indian tribe.
C. The terms "Indian tribe" and "tribal unit" shall have the meanings ascribed to them in federal law. "Tribal unit" includes subdivisions, subsidiaries, and business enterprises wholly owned by an Indian tribe.
D. Benefits based on service in employment defined in this section shall be payable in the same amount, on the same terms, and subject to the same conditions as benefits payable on the basis of other service subject to the Employment Security Act of 1980, provided wages used to establish the claim were paid during a time in which the account of the Indian tribe for which services were rendered was not terminated pursuant to subparagraph a of paragraph 1 of subsection F of this section.
E. 1. An Indian tribe or tribal unit subject to the Employment Security Act of 1980 shall pay contributions under the same terms and conditions as required of nongovernmental employers for profit subject to the Employment Security Act of 1980 unless the tribe elects to pay into the State Unemployment Compensation Fund amounts equal to the amount of benefits attributable to service in the employ of the Indian tribe.
2. An Indian tribe or tribal unit electing to make payments in lieu of contributions shall so notify the Oklahoma Employment Security Commission in writing. After making the election, the Indian tribe shall be liable for reimbursement payments in lieu of contributions in the same manner and subject to the same provisions that apply to reimbursing nonprofit organizations as provided in Part 8 of Article 3 of the Employment Security Act of 1980, including formation of group accounts, and the proportionate allocation of benefit costs, except that one hundred percent (100%) of the extended benefits attributable to the Indian tribe shall be reimbursed. Indian tribes shall determine whether reimbursement for benefits paid shall be elected by the tribe as a whole, by individual tribal units, or by combinations of individual tribal units. If any provision contained in Part 8 of Article 3 of the Employment Security Act of 1980, including the administrative rules implementing that Part, contradicts a provision of this section, the provision of this section shall control.
3. An Indian tribe or tribal unit shall be billed for the full amount of benefits attributable to service in the employ of the Indian tribe or tribal unit on the same schedule as other employing units that have elected to make payments in lieu of contributions.
F. 1. a. If an Indian tribe or tribal unit thereof fails to file the required reports and pay all late filing penalties or fails to make required payments under the Employment Security Act of 1980, including payment of all interest, penalties, surcharges, or fees, a notice of reporting or payment delinquency shall be mailed to the Indian tribe at its last-known address. If the delinquency is not corrected within ninety (90) days of the date of mailing of the notice of delinquency, the account of the Indian tribe shall be terminated and notice of termination shall be mailed to the tribe at its last-known address, together with a statement of protest rights available pursuant to Section 3-115 of this title. If the account of an Indian tribe is terminated pursuant to this subparagraph, the Indian tribe shall not be considered an "employer" for purposes of subsection A of this section, and services performed for the Indian tribe shall not be considered "employment" for purposes of subsection B of this section.
b. The Oklahoma Employment Security Commission may reinstate the account of any Indian tribe that loses coverage under subparagraph a of this subsection if the tribe pays all contributions, payments in lieu of contributions, interest, penalties, surcharges, and fees that are due and owing. Upon reinstatement, the tribe shall again be considered an "employer" for purposes of subsection A of this section and services performed for the tribe shall again be considered "employment" for purposes of subsection B of this section.
2. a. Failure of an Indian tribe or tribal unit to make required payments, including assessments of interest, penalties, surcharges, and fees within ninety (90) days of the due date for payment shall cause the Indian tribe to lose the option to make payments in lieu of contributions, as described in subsection E of this section, for the following tax year unless payment in full is received before January 31 of the next tax year.
b. Any Indian tribe that loses the option to make payments in lieu of contributions due to late payment or nonpayment, as described in subparagraph a of this paragraph, shall have the option reinstated if, after a period of one (1) year, all contribution payments have been timely made, provided no contributions, payments in lieu of contributions for benefits paid, interest, penalties, surcharges, or fees remain outstanding.
G. The notice of payment or reporting delinquency to Indian tribes or their tribal units, referred to in subparagraph a of paragraph 1 of subsection F of this section, shall include information that failure to make full payment and file required reports within the prescribed time frame shall cause:
1. The Indian tribe to be liable for taxes under FUTA;
2. The Indian tribe to lose the option to make payments in lieu of contributions;
3. The Indian tribe to be excepted from the definition of "employer", as provided in subsection A of this section; and
4. Services performed in the employ of the Indian tribe to be excepted from the definition of "employment", as provided in subsection B of this section.
H. Extended benefits paid that are attributable to service in the employ of an Indian tribe and not reimbursed by the United States government shall be financed in their entirety by the Indian tribe.
I. If an Indian tribe fails to make required payments under the Employment Security Act of 1980, including the payment of all interest, penalties, surcharges, and fees, within ninety (90) days of the mailing of the notice of payment delinquency, the Oklahoma Employment Security Commission shall immediately notify the United States Internal Revenue Service and the United States Department of Labor.
J. The provisions of subsections K and L of this section shall provide a transition for the implementation of Section 166 of Public Law 106-144 enacted by the Congress of the United States and effective December 21, 2000, so that Indian tribes may qualify for federal tax credits and employees of Indian tribes may be eligible for benefits.
K. Any Indian tribe which did not have an active account with the Oklahoma Employment Security Commission from January 1, 2001, to the effective date of this section, but which desires to be covered for benefits for that period of time, may elect to be subject to one of the following, if the tribe notifies the Commission of the election in writing:
1. To pay contributions. If the tribe elects to make payments for contributions, interest or penalties shall not be assessed against such tribe for the period from January 1, 2001, to the effective date of this section if full payment for all contributions due is made within twenty (20) days after an account is established for the tribe; or
2. To make payments in lieu of contributions. If the tribe elects to make payments in lieu of contributions, interest or penalties shall not be assessed against such tribe for the period from January 1, 2001, to the effective date of this section if all reports that are due for that period are filed within twenty (20) days after an account is established for the tribe.
L. Any Indian tribe which did not have an active account with the Oklahoma Employment Security Commission from January 1, 2001, to the effective date of this section and does not desire to be covered for benefits for that period shall be covered by the provisions of subsections A through I of this section. The coverage for any such tribe shall be prospective only and shall not entitle any employee of the tribe to benefits for any period prior to the effective date of this section.
M. Indian tribes paying contributions prior to the date of this section shall not be able to make an election to make payments in lieu of contributions for the period from January 1, 2001, to the effective date of this section. Any change in election shall be prospective only.
N. Participation by any Indian tribe in the state unemployment insurance system shall not operate as a waiver of the sovereign immunity of the tribe.
Added by Laws 2002, c. 452, § 1, eff. July 1, 2002.
§40-1-201. General definitions.
GENERAL DEFINITIONS. The words and phrases used in this act shall, unless the context clearly requires otherwise, have the meanings prescribed in Part 2 of this Article.
Added by Laws 1980, c. 323, § 1-201, eff. July 1, 1980.
§40-1-202. Base period.
BASE PERIOD. "Base period" means the first four (4) of the last five (5) completed calendar quarters immediately preceding the first day of an individual's benefit year.
Added by Laws 1980, c. 323, § 1-202, eff. July 1, 1980.
§40-1-202A. Extended Base Period.
EXTENDED BASE PERIOD.
If an individual lacks sufficient base period wages because of a job-related injury for which the individual received total temporary disability payments awarded by the Workers' Compensation Court, upon written application by the claimant, an extended base period will be substituted for the current base period on a quarter-by-quarter basis as needed to establish a valid claim. "Extended base period" means the four quarters prior to the claimant's base period. These four quarters may be substituted for base period quarters on a quarter-by-quarter basis to establish a valid claim regardless of whether the wages have been used to establish a prior claim, except any wages earned that would render the Commission out of compliance with applicable federal law will be excluded if used in a prior claim. Benefits paid on the basis of an extended base period, which would not otherwise be payable, shall be noncharged.
Added by Laws 1997, c. 30, § 1, eff. July 1, 1997.
§40-1-202B. Alternative base period.
ALTERNATIVE BASE PERIOD.
"Alternative Base Period" means the most recent four (4) completed calendar quarters immediately preceding the first day of an individual's benefit year. In the event that an individual's claim uses an alternative base period to meet the wage requirement under Section 2-207 of Title 40 of the Oklahoma Statutes, this "alternative base period" shall be substituted for "base period" for all other purposes under the Employment Security Act of 1980.
Added by Laws 2002, c. 452, § 2, eff. Nov. 1, 2002.
§40-1-203. Benefits.
BENEFITS. "Benefits" mean the money payments payable to an individual as provided in this act with respect to his unemployment, including extended benefits. The federal share of such extended benefits shall not be construed as benefits for the purposes of computing contribution rates under this act.
Added by Laws 1980, c. 323, § 1-203, eff. July 1, 1980.
§40-1-204. Benefit year.
BENEFIT YEAR. "Benefit year" with respect to any individual means the one-year period beginning with the first day of the first week with respect to which the individual first files a valid claim for benefits and thereafter the one-year period beginning with the first day of the first week with respect to which the individual next files a valid claim for benefits after the termination of his last preceding benefit year. Any claim for benefits shall be deemed a valid claim for the purpose of this section if the individual has been paid the wages for insured work required under this act.
Added by Laws 1980, c. 323, § 1-204, eff. July 1, 1980.
§40-1-205. Calendar quarter.
CALENDAR QUARTER. "Calendar quarter" means the period of three (3) consecutive calendar months ending on March 31, June 30, September 30, or December 31, or the equivalent thereof as the Commission may by regulation prescribe.
Added by Laws 1980, c. 323, § 1-205, eff. July 1, 1980.
§40-1-206. Commission, Commissioner.
COMMISSION, COMMISSIONER. "Commission" means the Oklahoma Employment Security Commission and "Commissioner" means a member of such Commission.
Added by Laws 1980, c. 323, § 1-206, eff. July 1, 1980.
§40-1-207. Contributions.
CONTRIBUTIONS. "Contributions" mean the money payments, including taxes and reimbursements, required by this act to be paid into the Unemployment Compensation Fund by an employer.
Added by Laws 1980, c. 323, § 1-207, eff. July 1, 1980.
§40-1-208. Employer.
EMPLOYER.
"Employer" means:
1. Any employing unit, except as provided under paragraphs 10 and 11 of this section, which:
a. for some portion of a day, but not necessarily simultaneously, in each of twenty (20) different calendar weeks, whether or not such weeks are or were consecutive, within either the calendar year or the preceding calendar year, and for the purpose of this definition if any week includes both December 31 and January 1, the days up to January 1 shall be deemed one (1) calendar week and the days beginning January 1 another such week, has or had in employment one or more individuals, irrespective of whether the same individuals are or were employed in each such day, or
b. in any calendar quarter, in either the calendar year or preceding calendar year paid for service in employment wages of One Thousand Five Hundred Dollars ($1,500.00) or more;
2. Any individual or employing unit, whether or not an employing unit at the time of the acquisition, which acquired substantially all of the organization, trade, business, or assets thereof, of another which at the time of such acquisition was an employer subject to the Employment Security Act of 1980; or which acquired a part of the organization, trade, or business of another employing unit which at the time of such acquisition was an employer subject to the Employment Security Act of 1980;
3. Any individual or employing unit, whether or not an employing unit at the time of acquisition, which acquired substantially all of the organization, trade, business, or assets thereof, of another employing unit, if the employment record of such individual or employing unit subsequent to such acquisition, together with the employment record of the acquired unit prior to such acquisition, both within the same calendar year, would be sufficient to constitute an employing unit and employer subject to the Employment Security act of 1980 under paragraph 1 of this section; or any individual or employing unit which acquired substantially all of the organization, trade, business, or assets of another employing unit if such employing unit subsequent to such acquisition, and such acquired unit prior to such acquisition, both within the same calendar quarter, together paid for service in employment wages totaling One Thousand Five Hundred Dollars ($1,500.00) or more;
4. Any employing unit which, together with one or more other employing units, is owned or controlled, by legally enforceable means or otherwise, directly by the same interest, or which owns or controls one or more other employing units, by legally enforceable means or otherwise, and which, if treated as a single unit with such other employing unit, would be an employer under paragraph (1) of this section;
5. Any employing unit which, having become an employer under paragraphs 1, 2, 3, 4, 8, 10 or 11 of this section has not, under Section 3-202 of this title, ceased to be an employer subject to the Employment Security Act of 1980;
6. For the effective period of its election pursuant to Section 3-203 of this title any other employing unit which has elected to become subject to the Employment Security Act of 1980;
7. Any department of this state, any other state, and all instrumentalities thereof, including any political subdivisions and their instrumentalities, for which service in employment, as defined in paragraph (3) of Section 1-210 of this title, is performed, except as provided under paragraphs 10 and 11 of this section;
8. Any employing unit for which service in employment, as defined in paragraph (4) of Section 1-210 of this title, is performed, except as provided under paragraphs 10 and 11 of this section;
9. For purposes of paragraphs 1, 8, 10 and 11 of this section, employment shall include service which would constitute employment but for the fact that such service is deemed to be performed entirely within another state pursuant to an election under an arrangement entered into in accordance with Section 4-702 of this title by the Oklahoma Employment Security Commission and an agency charged with the administration of any other state or federal unemployment compensation law;
10. Any employing unit for which agricultural labor as defined in paragraph (5) of Section 1-210 of this title is performed. In determining whether or not an employing unit for which service other than agricultural labor is also performed is an employer under paragraph 1, 7, 8 or 11 of this section, the wages earned or the employment of an employee performing service in agricultural labor shall not be taken into account;
11. Any employing unit for which domestic service in employment as defined in paragraph (6) of Section 1-210 of this title is performed. In determining whether or not an employing unit for which service other than domestic service is also performed is an employer under paragraph 1, 7, 8 or 10 of this section, the wages earned or the employment of an employee performing domestic service shall not be taken into account;
12. Any employing unit which is not an employer by reason of any other provisions of the Employment Security Act of 1980 shall nevertheless be an "employer" if either:
a. within the calendar year or preceding calendar year, service is or was performed, with respect to which such employing unit is liable for any federal tax against which credit may be taken by such employing unit for contributions required to be paid by it into a state unemployment fund, or
b. such employing unit is required to be an "employer" as a condition for approval of the Employment Security Act of 1980 for full tax credit to be allowed against the tax imposed by the Federal Unemployment Tax Act, 26 U.S.C., Section 3301 et seq.; or
13. If two or more employers share common ownership, management, or control, the Commission may combine their merit rating accounts, including their actual contribution and benefit experience, annual payrolls, and contribution rates into one account.
Added by Laws 1980, c. 323, § 1-208, eff. July 1, 1980. Amended by Laws 1990, c. 333, § 1, emerg. eff. May 31, 1990; Laws 1993, c. 219, § 1, eff. Sept. 1, 1993; Laws 1997, c. 30, § 2, eff. July 1, 1997; Laws 2005, c. 182, § 1, eff. Nov. 1, 2005.
§40-1-208A. Motor carrier not employer of lessor or driver.
MOTOR CARRIER NOT EMPLOYER OF LESSOR OR DRIVER.
In no event will a motor carrier be determined to be the employer of a lessor as defined in Section 166a or 230.29 of Title 47 of the Oklahoma Statutes, or of a driver receiving compensation from a lessor.
Added by Laws 1986, c. 223, § 23, emerg. eff. June 9, 1986. Amended by Laws 2002, c. 452, § 3, eff. Nov. 1, 2002.
§40-1-209. Employing unit.
EMPLOYING UNIT.
"Employing unit" means any individual or type of organization, including any partnership, association, trust, estate, joint stock company, insurance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal representative of a deceased person, which has or subsequent to January 1, 1936, had in its employ one or more individuals performing services for it within this state.
All individuals performing services within this state for any employing unit which maintains two or more separate establishments within this state shall be deemed to be employed by a single employing unit for all the purposes of the Employment Security Act of 1980, except as provided under paragraphs (10) and (11) of Section 1-208 of this title.
Whenever any employing unit contracts with or has under it any contractor or subcontractor for any employment, which is part of its usual trade, occupation, profession, or business, unless the employing unit as well as each such contractor or subcontractor is an employer by reason of Section 1-208 or Section 3-203 of this title, the employing unit shall for all the purposes of the Employment Security Act of 1980 be deemed to employ each individual in the employ of each such contractor or subcontractor for each day during which such individual is engaged in performing such employment; except that each such contractor or subcontractor who is an employer by reason of Section 1-208 or Section 3-203 of this title shall alone be liable for the contributions measured by wages paid to individuals employed by the contractor or subcontractor, and except that any employing unit which shall become liable for and pay contributions with respect to individuals in the employ of any such contractor or subcontractor who is not an employer by reason of Section 1-208 or Section 3-203 of this title may recover the same from such contractor or subcontractor.
Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall be deemed to be employed by such employing unit for all the purposes of the Employment Security Act of 1980, whether such individual was hired or paid directly by such employing unit or by such agent or employee of an employing unit, provided the employing unit had actual or constructive knowledge of the employment.
Added by Laws 1980, c. 323, § 1-209, eff. July 1, 1980. Amended by Laws 2002, c. 452, § 4, eff. Nov. 1, 2002.
§40-1-209A. Lessor employing unit.
LESSOR EMPLOYING UNIT. A. "Lessor employing unit" means any independently established business entity which engages in the business of providing leased employees to any other employer, individual, organization, partnership, corporation or other legal entity, referred to herein as a client lessee.
B. Any employer or any individual, organization, partnership, corporation or other legal entity which meets the definition of lessor employing unit shall be liable for contribution on wages paid by the lessor employing unit to individuals performing services for client lessees of the lessor employing unit.
C. Unless the lessor employing unit has timely complied with the provisions of this section, any employer, individual, organization, partnership, corporation or other legal entity leasing employees from any lessor employing unit shall be jointly and severally liable for any unpaid contributions, interest, penalties and fees due under this section from any lessor employing unit attributable to wages for services performed for the client lessee entity by the employees leased to the client lessee entity.
D. In order to relieve client lessees from joint and several liability imposed under this section, any lessor employing unit as defined herein may post and maintain a surety bond issued by a corporate surety authorized to do business in this state 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 One Hundred Thousand Dollars ($100,000.00), whichever amount is the greater, to ensure prompt payment of contributions, interest, penalties and fees for which the lessor employing unit may be or may become liable under this section.
E. Any lessor employing unit as defined herein which is currently engaged in the business of leasing employees to client lessees shall comply with the provisions of this section by January 1, 1991.
F. Any lessor employing unit not engaged in the business of leasing employees to client lessees on or before the effective date of this act shall comply with the requirements herein before entering into lease agreements with client lessees.
Added by Laws 1990, c. 333, § 2, emerg. eff. May 31, 1990. Amended by Laws 1993, c. 219, § 2, eff. Sept. 1, 1993.
§40-1-210. Employment.
EMPLOYMENT.
"Employment" means:
(1) Any service, including service in interstate commerce, performed by:
(a) any officer of a corporation; or
(b) any individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an employee.
(2) (a) any service, including service in interstate commerce, performed by any individual other than an individual who is an employee under paragraph (1) of this section who performs services for remuneration for any person:
(i) as an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages other than milk, or laundry or dry cleaning services, for his or her principal; or
(ii) as a traveling or city salesperson, other than as an agent-driver or commission-driver, engaged upon a full-time basis in the solicitation on behalf of, and the transmission to, his or her principal, except for sideline sales activities on behalf of some other person, of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants or other similar establishments for merchandise for resale or supplies for use in their business operations;
(b) provided, the term "employment" shall include services described in divisions (i) and (ii) of subparagraph (a) of this paragraph if:
(i) the contract of service contemplates that substantially all of the services are to be performed personally by such individual;
(ii) the individual does not have a substantial investment in facilities used in connection with the performance of the services, other than in facilities for transportation; and
(iii) the services are not in the nature of a single transaction that is not part of a continuing relationship with the person for whom the services are performed.
(3) Service performed in the employ of this state or any of its instrumentalities or any political subdivision thereof or any of its instrumentalities or any instrumentality of more than one of the foregoing or any instrumentality of any of the foregoing and one or more other states or political subdivisions; provided, that such service is excluded from "employment" as defined in the Federal Unemployment Tax Act, 26 U.S.C., Section 3306(c)(7), and is not excluded from "employment" under paragraph (7) of this section.
(4) Service performed by an individual in the employ of a community chest, fund, foundation or corporation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation and which does not participate in, or intervene in, including the publishing or distributing of statements, any political campaign on behalf of any candidate for public office; provided that such organization had four or more individuals in employment for some portion of a day in each of twenty (20) different weeks, whether or not such weeks were consecutive, within either the calendar year or preceding calendar year, regardless of whether they were employed at the same moment of time.
(5) Service performed by an individual in agricultural labor as defined in subparagraph (a) of paragraph (15) of this section when:
(a) such service is performed for a person who:
(i) during any calendar quarter in either the calendar year or the preceding calendar year, paid remuneration in cash of Twenty Thousand Dollars ($20,000.00) or more to individuals employed in agricultural labor; or
(ii) for some portion of a day in each of twenty (20) different calendar weeks, whether or not such weeks were consecutive, in either the calendar year or the preceding calendar year, employed in agricultural labor ten or more individuals, regardless of whether they were employed at the same moment of time.
(b) for the purposes of this paragraph any individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for any other person shall be treated as an employee of such crew leader:
(i) if such crew leader holds a valid certificate of registration under the Farm Labor Contractor Registration Act of 1963, Public Law 95-562, 29 U.S.C., Sections 1801 through 1872; or substantially all the members of such crew operate or maintain tractors, mechanized harvesting or crop-dusting equipment, or any other mechanized equipment, which is provided by such crew leader; and
(ii) if such individual is not an employee of such other person within the meaning of paragraph (1) of this section or subparagraph (d) of this paragraph.
(c) for the purposes of this paragraph, in the case of any individual who is furnished by a crew leader to perform service in agricultural labor for any other person and who is not treated as an employee of such crew leader under subparagraph (b) of this paragraph:
(i) such other person and not the crew leader shall be treated as the employer of such individual; and
(ii) such other person shall be treated as having paid cash remuneration to such individual in an amount equal to the amount of cash remuneration paid to such individual by the crew leader, either on his or her own behalf or on behalf of such other person, for the service in agricultural labor performed for such other person.
(d) for the purposes of this paragraph, the term "crew leader" means an individual who:
(i) furnishes individuals to perform service in agricultural labor for any other person;
(ii) pays, either on his or her own behalf or on behalf of such other person, the individuals so furnished by the crew leader for the service in agricultural labor performed by them; and
(iii) has not entered into a written agreement with such other person (farm operator) under which such individual is designated as an employee of such other person.
(6) The term "employment" shall include domestic service in a private home, local college club or local chapter of a college fraternity or sorority performed for a person who paid cash remuneration of One Thousand Dollars ($1,000.00) or more in the calendar year or the preceding calendar year to individuals employed in such domestic service in any calendar quarter.
(7) For the purposes of paragraphs (3) and (4) of this section the term "employment" does not apply to service performed:
(a) in the employ of:
(i) a church or convention or association of churches; or
(ii) an organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches;
(b) by a duly ordained, commissioned or licensed minister of a church in the exercise of his or her ministry or by a member of a religious order in the exercise of duties required by such order;
(c) in the employ of a governmental entity referred to in paragraph (3) of this section if such service is performed by an individual in the exercise of duties:
(i) as an elected official;
(ii) as a member of a legislative body, or a member of the judiciary of a state or political subdivision;
(iii) as a member of the State National Guard or Air National Guard;
(iv) as an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency;
(v) in a position which, under or pursuant to the laws of this state, is designated as a major nontenured policymaking or advisory position, or a policymaking or advisory position the performance of the duties of which ordinarily does not require more than eight (8) hours per week;
(vi) as an election official or election worker if the amount of remuneration received by the individual during the calendar year for services as an election official or election worker is less than One Thousand Dollars ($1,000.00);
(d) by an individual receiving rehabilitation or remunerative work while participating or enrolled in a program in a facility that:
(i) conducts a program of rehabilitation for individuals whose earning capacity is impaired by age, physical or mental deficiency, or injury; or
(ii) conducts a program that provides remunerative work for individuals who, because of their impaired mental or physical capacity cannot be readily absorbed into the competitive labor market;
(e) as part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision thereof, by an individual receiving such work-relief or work-training; or
(f) by an inmate of a custodial or penal institution.
(8) The term "employment" shall include the service of an individual who is a citizen of the United States, performed outside the United States, except in Canada, in the employ of an American employer other than service which is deemed "employment" under the provisions of paragraphs (11) or (12) of this section or the parallel provisions of another state's law, if:
(a) the employer's principal place of business in the United States is located in this state;
(b) the employer has no place of business in the United States, but:
(i) the employer is an individual who is a resident of this state;
(ii) the employer is a corporation which is organized under the laws of this state; or
(iii) the employer is a partnership or a trust and the number of the partners or trustees who are residents of this state is greater than the number who are residents of any one other state;
(c) none of the criteria of subparagraphs (a) and (b) of this paragraph are met but the employer has elected coverage in this state or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits, based on such service, under the law of this state;
(d) an "American employer", for purposes of this subsection, means a person who is:
(i) an individual who is a resident of the United States;
(ii) a partnership if two-thirds or more of the partners are residents of the United States;
(iii) a trust, if all of the trustees are residents of the United States; or
(iv) a corporation organized under the laws of the United States or of any state; and
(e) the term "United States", for the purposes of this subsection, includes the states, the District of Columbia, the Commonwealth of Puerto Rico and the Virgin Islands.
(9) Notwithstanding paragraph (11) of this section, all service performed by an officer or member of the crew of an American vessel on or in connection with such vessel, if the operating office, from which the operations of such vessel operating on navigable waters within, or within and without, the United States are ordinarily and regularly supervised, managed, directed and controlled is within this state.
(10) Notwithstanding any other provisions of the Employment Security Act of 1980, "employment":
(a) includes any service with respect to which a tax is required to be paid under any federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund; and
(b) includes any service which is required to be "employment" for full tax credit to be allowed against the tax imposed by the Federal Unemployment Tax Act of 1954, Public Law 591, Chapter 736, as amended, 26 U.S.C., Section 3301 et seq.
(11) The term "employment" shall include an individual's entire service, performed within or both within and without this state if:
(a) the service is localized in this state; or
(b) the service is not localized in any state but some of the service is performed in this state and:
(i) the individual's base of operations, or, if there is no base of operations, then the place from which the individual's employment is directed or controlled is in this state; or
(ii) the individual's base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed but the individual's residence is in this state.
(12) (a) Services covered by an election pursuant to Section 3-203 of this title; and
(b) services covered by an arrangement pursuant to Section 4-701 et seq. of this title between the Oklahoma Employment Security Commission and the agency charged with the administration of any other state or federal unemployment compensation law, pursuant to which all services performed by an individual for an employing unit are deemed to be performed entirely within this state, shall be deemed to be employment if the Commission has approved an election of the employing unit for whom such services are performed, pursuant to which the entire service of such individual during the period covered by such election is deemed to be insured work.
(13) Service shall be deemed to be localized within a state if:
(a) the service is performed entirely within such state; or
(b) the service is performed both within and without such state, but the service performed without such state is incidental to the individual's service within the state; for example, is temporary or transitory in nature or consists of isolated transactions.
(14) Notwithstanding any other provision of this subsection, services performed by an individual for wages or under any contract of hire shall be deemed to be employment subject to the Employment Security Act of 1980 unless and until it is shown to the satisfaction of the Commission that:
(a) such individual has been and will continue to be free from control or direction over the performance of such services, both under the contract of hire and in fact; and
(b) such individual is customarily engaged in an independently established trade, occupation, profession, or business; or
(c) such service is outside the usual course of the business for which such service is performed and that such service is performed outside of all the places of business of the enterprise for which such service is performed.
(15) The term "employment" shall not include:
(a) services performed by an individual in agricultural labor, except as provided under paragraph (5) of this section. Services performed by an individual who is a nonresident alien admitted to the United States to perform agricultural labor, pursuant to 8 U.S.C. Sections 1101(a), 1184(c) and 1188. For purposes of this subparagraph, the term "agricultural labor" means remunerated service performed in agricultural labor as defined in the Federal Unemployment Tax Act, 26 U.S.C., Section 3306(k);
(b) domestic service, except as provided under paragraph (6) of this section, in a private home, local college club, or local chapter of a college fraternity or sorority;
(c) service performed by an individual in the employ of his or her son, daughter, or spouse, and service performed by a child under the age of twenty-one (21) in the employ of his or her father or mother, or both father and mother;
(d) service performed in the employ of the United States government or an instrumentality of the United States exempt under the Constitution of the United States from the contributions imposed by the Employment Security Act of 1980, except that to the extent that the Congress of the United States shall permit states to require any instrumentalities of the United States to make payments into an unemployment fund under a state unemployment compensation law, all of the provisions of the Employment Security Act of 1980 shall be applicable to such instrumentalities, and to services performed for such instrumentalities, in the same manner, to the same extent, and on the same terms as to all other employers, employing units, individuals and services; provided that if this state shall not be certified for any year by the Secretary of Labor of the United States under the Federal Internal Revenue Code, 26 U.S.C., Section 3304(c), the payments required of such instrumentalities with respect to such year shall be refunded by the Commission from the fund in the same manner and within the same period as is provided in Section 3-304 of this title with respect to contributions erroneously collected;
(e) service with respect to which unemployment compensation is payable under an unemployment compensation system established by an act of Congress;
(f) service performed in the employ of a foreign government, including service as a consul or other officer or employee or a nondiplomatic representative;
(g) service performed in the employ of an instrumentality wholly owned by a foreign government:
(i) if the service is of a character similar to that performed in foreign countries by employees of the United States government or of an instrumentality thereof, and
(ii) if the Commission finds that the United States Secretary of State has certified to the United States Secretary of the Treasury that the foreign government, with respect to whose instrumentality exemption is claimed, grants an equivalent exemption with respect to similar service performed in the foreign country by employees of the United States government and of instrumentalities thereof;
(h) service covered by an arrangement between the Commission and the agency charged with the administration of any other state or federal unemployment compensation law pursuant to which all services performed by an individual for an employing unit during the period covered by such employing unit's duly approved election, are deemed to be performed entirely within the jurisdiction of such other state or federal agency;
(i) service performed as a student nurse in the employ of a hospital or a nurses' training school by an individual who is enrolled and is regularly attending classes in a nurses' training school chartered or approved pursuant to state law; and service performed as an intern in the employ of a hospital by an individual who has completed a four-year course in a medical school chartered or approved pursuant to state law;
(j) service performed by an individual for a person, firm, association, trust, partnership or corporation as an insurance agent, or as an insurance solicitor or as a licensed real estate agent, if all such service performed by such individual for such person is performed for remuneration solely by way of commissions or fees;
(k) service performed by an individual under the age of eighteen (18) in the delivery and distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution, and services performed by an individual eighteen (18) years of age or older who meets the definition of a "direct seller" as defined in 26 U.S.C., Section 3508(b)(2), that states in pertinent part:
(i) the individual must be engaged in the delivery or distribution of newspapers or shopping news, including any services directly related to such trade or business,
(ii) substantially all the remuneration, whether or not paid in cash, for the performance of the services described in clause (i) of this subdivision is directly related to sales or other output, including the performance of services, rather than the number of hours worked, and
(iii) the services performed by the individual are performed pursuant to a written contract between such person and the person for whom the services are performed and such contract provides that the person will not be treated as an employee with respect to such services;
(l) service performed in the employ of a school, college or university, if the service is performed:
(i) by a student who is enrolled and is regularly attending classes at the school, college, or university, or
(ii) by the spouse of the student, if the spouse is advised, at the time the spouse commences to perform the service, that:
(I) the employment of the spouse to perform the service is provided under a program to provide financial assistance to the student by the school, college, or university, and
(II) the employment will not be covered by any program of unemployment insurance;
(m) service performed by an individual who is enrolled at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on as a student in a full-time program, taken for credit at the institution, which combines academic instruction with work experience, if the service is an integral part of the program, and the institution has so certified to the employer, except that this provision shall not apply to service performed in a program established for or on behalf of an employer or group of employers;
(n) service performed in the employ of a hospital, if the service is performed by a patient of the hospital;
(o) services performed by cooperative extension personnel holding federal appointments employed by state institutions of higher learning;
(p) earnings of employees being paid by state warrants who are presently covered by the Federal Unemployment Compensation Act, 5 U.S.C., Section 8501 et seq., by virtue of their federal status;
(q) cosmetology services performed by an individual in a beauty shop, as defined by Section 199.1 of Title 59 of the Oklahoma Statutes, pursuant to an agreement whereby the owner of the beauty shop leases or rents facilities for cosmetology to such individual;
(r) barbering services performed by an individual in a barber shop, as defined by Section 61.5 of Title 59 of the Oklahoma Statutes, pursuant to an agreement whereby the owner of the barber shop leases or rents facilities for barbering to such individual;
(s) in-home services performed in a medical care program such as the nontechnical medical care program, or social services program, as certified and approved by the Department of Human Services or the Federal Health Care Financing Administration or as a participant in a work or training program administered by the Department of Human Services;
(t) riding services performed by a jockey and services performed by a trainer of race horses in an approved race licensed by the Oklahoma Horse Racing Commission;
(u) service performed by an individual whose remuneration consists solely of commissions, overrides, bonuses, and differentials related to sales or other output derived from in-person sales to, or solicitation of orders from, ultimate consumers primarily in the home, or otherwise than in a permanent retail establishment;
(v) service performed by a person, commonly referred to as "owner-operator", who owns or leases a truck-tractor or truck for hire, provided the owner-operator actually operates the truck-tractor or truck and, further, that the entity contracting with the owner-operator is not the lessor of the truck-tractor or truck;
(w) services performed as a chopper of cotton who weeds or thins cotton crops by hand or hoe. This subsection shall be interpreted and applied consistently with the Federal Unemployment Tax Act, 26 U.S.C., Sections 3304(a)(6)(A) and 3306(k); or
(x) services performed for a private for-profit person or entity by an individual as a landman:
(i) if the individual is engaged primarily in negotiating for the acquisition or divestiture of mineral rights or negotiating business agreements that provide for the exploration for or development of minerals,
(ii) if substantially all remuneration paid in cash or otherwise for the performance of the services is directly related to the completion by the individual of the specific tasks contracted for rather than to the number of hours worked by the individual, and
(iii) if the services performed by the individual are performed under a written contract between the individual and the person for whom the services are performed; provided that the individual is to be treated as an independent contractor and not as an employee with respect to the services provided under the contract.
Added by Laws 1982, c. 105, § 1, operative Oct. 1, 1982. Amended by Laws 1982, c. 304, § 2, operative Oct. 1, 1982; Laws 1984, c. 252, § 1, emerg. eff. May 29, 1984; Laws 1986, c. 205, § 1, emerg. eff. June 6, 1986; Laws 1989, c. 165, § 1, eff. Nov. 1, 1989; Laws 1990, c. 235, § 1, eff. Sept. 1, 1990; Laws 1993, c. 198, § 21, eff. Sept. 1, 1993; Laws 1993, c. 360, § 5, emerg. eff. June 10, 1993; Laws 1994, c. 195, § 1, emerg. eff. May 16, 1994; Laws 1995, c. 340, § 2, eff. July 1, 1995; Laws 1997, c. 30, § 3, eff. July 1, 1997; Laws 1997, c. 391, § 1, eff. July 1, 1997; Laws 1998, c. 161, § 1, eff. July 1, 1998; Laws 2002, c. 452, § 5, eff. Nov. 1, 2002; Laws 2004, c. 102, § 1, eff. Nov. 1, 2004.
NOTE: Laws 1993, c. 219, § 3 repealed by Laws 1993, c. 360, § 16, emerg. eff. June 10, 1993.
§40-1-211. Employment office.
EMPLOYMENT OFFICE. "Employment office" means a free public employment office or branch thereof operated by this or any other state as a part of a state-controlled system of public employment offices or by a federal agency charged with the administration of an unemployment compensation program or free public employment offices.
Added by Laws 1980, c. 323, § 1-211, eff. July 1, 1980.
§40-1-212. Fund, Employment Security Administration Fund.
FUND, EMPLOYMENT SECURITY ADMINISTRATION FUND. (1) "Fund" means the unemployment compensation fund established by this act.
(2) "Employment Security Administration Fund" means the fund established by this act from which administration expenses under this act shall be paid.
Added by Laws 1980, c. 323, § 1-212, eff. July 1, 1980.
§40-1-213. Hospital.
HOSPITAL. "Hospital" means any hospital required to be licensed under the Public Health Code, Sections 101 et seq. of Title 63 of the Oklahoma Statutes, and includes state mental hospitals and any other mental hospital or institution.
Added by Laws 1980, c. 323, § 1-213, eff. July 1, 1980.
§40-1-214. Institution of higher education.
INSTITUTION OF HIGHER EDUCATION. "Institution of higher education" means an educational institution which:
(1) Admits as regular students only individuals having a certificate of graduation from a high school, or the recognized equivalent of such certificate;
(2) Is legally authorized in this state to provide a program of education beyond high school;
(3) Provides an educational program for which it awards a bachelor's or higher degree, or provides a program which is acceptable for full credit toward such degree, a program of postgraduate or postdoctoral studies, or a program of training to prepare students for gainful employment in a recognized occupation; and
(4) Is a public or other nonprofit institution.
Notwithstanding any of the foregoing provisions of this subsection, all colleges and universities in this state are institutions of higher education for purposes of this section.
Added by Laws 1980, c. 323, § 1-214, eff. July 1, 1980.
§40-1-215. Insured work.
INSURED WORK. "Insured work" means employment for employers as defined by this act.
Added by Laws 1980, c. 323, § 1-215, eff. July 1, 1980.
§40-1-216. State.
STATE. "State" includes, in addition to the states of the United States of America, the District of Columbia, the Commonwealth of Puerto Rico and the Virgin Islands.
Added by Laws 1980, c. 323, § 1-216, eff. July 1, 1980.
§40-1-217. Unemployed.
UNEMPLOYED. An individual shall be deemed "unemployed" with respect to any week during which he performed no services and with respect to which no wages are payable to him, or with respect to any week of less than fulltime work if the wages payable to him with respect to such week are less than his weekly benefit amount plus One Hundred Dollars ($100.00); provided that for the purpose of this section only, any vacation leave payments or sick leave payments, which such individual may receive or be entitled to from his employer or former employer, arising by reason of separation from employment, shall be deemed not to be wages as the term wages is used in this section.
Added by Laws 1980, c. 323, § 1-217, eff. July 1, 1980. Amended by Laws 1994, c. 41, § 1, eff. July 1, 1994.
§40-1-218. Wages.
WAGES.
"Wages" means all remuneration for services from whatever source, including commissions and bonuses and the cash value of all remuneration in any medium other than cash, and includes dismissal payments which the employer is required by law or contract to make. Gratuities customarily received by an individual in the course of work from persons other than the employing unit shall be treated as wages received from the employing unit. The reasonable cash value of remuneration in any medium other than cash, and the reasonable amount of gratuities, shall be estimated and determined in accordance with rules prescribed by the Oklahoma Employment Security Commission. The term wages shall not include:
1. The amount of any payment, with respect to services performed to or on behalf of an individual in its employ under a plan or system established by an employing unit which makes provision for individuals in its employ generally, or for a class or classes of such individuals, including any amount paid by an employing unit for insurance or annuities, or into a fund to provide for any such payment, on account of:
a. retirement, other than employee contributions or deferrals after December 31, 2005, under a qualified plan as described in 26 U.S.C. Sections 401(k), 403b, 408(k), 457 and 7701(j),
b. sickness or accident disability,
c. medical and hospitalization expenses in connection with sickness or accident disability,
d. death, provided the individual in its employ:
(1) has not the option to receive, instead of provision for such death benefit, any part of such payment, or if such death benefit is insured, any part of the premium or contributions to premiums paid by the employing unit, and
(2) has not the right, under the provisions of the plan or system or policy of insurance providing for such death benefit, to assign such benefit, or to receive cash consideration in lieu of such benefit either upon withdrawal from the plan or system providing for such benefit or upon termination of such plan or system or policy of insurance or of the individual's services with such employing unit, or
e. a bona fide thrift or savings fund, providing:
(1) such payment is conditioned upon a payment of a substantial sum by such individuals in its employ, and
(2) that such sum paid by the employing unit cannot under the provisions of such plan be withdrawn by an individual more frequently than once in any twelve-month period, except upon an individual's separation from that employment;
2. Any payment made to, or on behalf of, an employee or his or her beneficiary under a cafeteria plan of the type described in 26 U.S.C., Section 125 and referred to in 26 U.S.C., Section 3306(b)(5)(G);
3. Any payment made, or benefit furnished, to or for the benefit of an employee if at the time of such payment or such furnishing it is reasonable to believe that the employee will be able to exclude such payment or benefit from income under an educational assistance program as described in 26 U.S.C., Section 127 or a dependent care assistance program as described in 26 U.S.C., Section 129 and as referred to in 26 U.S.C., Section 3306(b)(13);
4. The payment by an employing unit, without deduction from the remuneration of the individual in its employ, of the tax imposed upon such individual in its employ under 26 U.S.C., Section 3101 with respect to domestic services in a private home of the employer or for agricultural labor;
5. Dismissal payments which the employer is not required by law or contract to make;
6. The value of any meals and lodging furnished by or on behalf of an employer to an individual in its employ; provided the meals and lodging are furnished on the business premises of the employer for the convenience of the employer; or
7. Payments made under an approved supplemental unemployment benefit plan.
Added by Laws 1980, c. 323, § 1-218, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 2, emerg. eff. June 25, 1981; Laws 1982, c. 304, § 3, operative Oct. 1, 1982; Laws 1983, c. 270, § 1, emerg. eff. June 23, 1983; Laws 1993, c. 219, § 4, eff. Sept. 1, 1993; Laws 1997, c. 30, § 4, eff. July 1, 1997; Laws 2002, c. 452, § 6, eff. Nov. 1, 2002; Laws 2005, c. 182, § 2, eff. Nov. 1, 2005.
§40-1-219. Wages paid.
WAGES PAID. "Wages paid" means wages actually paid to the worker; provided, however, that in the event of any distribution of an employer's assets through insolvency, receivership, composition, assignment for the benefit of creditors, or termination of business, wages earned but not actually paid shall be considered as paid.
Added by Laws 1980, c. 323, § 1-219, eff. July 1, 1980.
§40-1-220. Week.
WEEK. "Week" means such period of seven (7) consecutive days, as the Commission may by regulation prescribe.
Added by Laws 1980, c. 323, § 1-220, eff. July 1, 1980.
§40-1-221. Benefit wages.
BENEFIT WAGES. "Benefit wages" means the wages earned by a claimant during the claimant's base period which are not in excess of the current maximum weekly benefit amount, as determined under Section 2-104 of this title, multiplied by the maximum number of weeks for which benefits could be paid to any individual (now twenty-six (26) weeks) multiplied by three (3); provided, however, no wages shall be included as "benefit wages" unless and until the claimant has been paid benefits for five (5) weeks in one (1) benefit year.
Added by Laws 1980, c. 323, § 1-221, eff. July 1, 1980. Amended by Laws 1994, c. 195, § 2, emerg. eff. May 16, 1994; Laws 1995, c. 340, § 3, eff. Jan. 1, 1996.
§40-1-222. Repealed by Laws 1998, c. 161, § 15, eff. July 1, 1998.
§40-1-223. Taxable wages.
TAXABLE WAGES.
A. Prior to January 1, 2000, "taxable wages" means the wages paid to an individual with respect to employment during a calendar year for services covered by the Employment Security Act of 1980 or other state unemployment compensation acts which shall equal fifty percent (50%) of the state's average annual wage for the second preceding calendar year as determined by the Commission, rounded to the nearest multiple of One Hundred Dollars ($100.00).
B. Beginning January 1, 2000, "taxable wages" means the wages paid to an individual with respect to employment during a calendar year for services covered by the Employment Security Act of 1980 or other state unemployment compensation acts which shall equal the applicable percentage of the state's average annual wage for the second preceding calendar year as determined by the Commission, rounded to the nearest multiple of One Hundred Dollars ($100.00). The applicable percentage is determined by the conditional factor in place during the calendar year for which the taxable wage is being calculated. The conditional factor is determined pursuant to the provisions of Section 3-113 of this title. The applicable percentages are as follows:
1. Forty percent (40%) during any calendar year in which the balance in the Unemployment Compensation Fund is in excess of the amount required to initiate conditional contribution rates, pursuant to the provisions of Section 3-113 of this title;
2. Forty-two and one-half percent (42.5%) during calendar years in which condition "a" exists;
3. Forty-five percent (45%) during calendar years in which condition "b" exists;
4. Forty-seven and one-half percent (47.5%) during calendar years in which condition "c" exists; and
5. Fifty percent (50%) during calendar years in which condition "d" exists.
Added by Laws 1983, c. 270, § 2, emerg. eff. June 23, 1983. Amended by Laws 1994, c. 195, § 3, emerg. eff. May 16, 1994; Laws 1998, c. 161, § 2, eff. July 1, 1998.
§40-1-224. File.
FILE.
For the purposes of Sections 2-503, 2-505, 2-603, 2-606, 3-102, 3-106, 3-111, 3-202, 3-203, 3-301, 3-305, 3-310, 3-805, 3-806, and 3-809 of this title, the term "file", "files", or "filed" shall be defined as follows:
1. Hand-delivered to an office of the Oklahoma Employment Security Commission by the close of business on or before the date due;
2. Telefaxed to an office of the Oklahoma Employment Security Commission by midnight on or before the date due. Timely telefaxing shall be determined by the date and time printed by the Commission's telefax machine on the document received or the date and time on the sender's transmittal sheet;
3. Mailed with sufficient postage and properly addressed to an office of the Oklahoma Employment Security Commission on or before the date due. Timely mailing shall be determined by the postmark; or
4. Electronically transmitted via data lines to the Commission by midnight on or before the date due. Timely transmission shall be determined by the Commission's transmission log file.
Added by Laws 1997, c. 30, § 5, eff. July 1, 1997. Amended by Laws 1998, c. 161, § 3, eff. July 1, 1998; Laws 2005, c. 182, § 3, eff. Nov. 1, 2005.
§40-1-225. Supplemental unemployment benefit plan.
SUPPLEMENTAL UNEMPLOYMENT BENEFIT PLAN.
A. "Supplemental unemployment benefit plan" means a plan that provides for an employer to make payments to its employees during a temporary layoff that will supplement unemployment benefits received by the employees. The purpose of a supplemental unemployment benefit plan is to allow an employer the opportunity to keep the employer's workforce intact during a temporary layoff.
B. Every supplemental unemployment benefit plan must meet the following requirements:
1. The plan shall provide for a payment from the employer to the employee each week during the temporary layoff to supplement unemployment benefits received by the employee;
2. The employer must be able to give a reasonable assurance that the separated employees will be able to return to work at the end of the temporary layoff; and
3. The overall plan must be in keeping with the statement of purpose set out in subsection A of this section.
C. The amount of supplemental unemployment benefit plan payments will not be deducted from the weekly benefit amount of an unemployment benefit claim.
D. All supplemental unemployment benefit plans must be approved by the Director of the Unemployment Insurance Division of the Oklahoma Employment Security Commission. The Director's determination will be in writing and mailed to the employer's last-known address. If an employer disagrees with the determination, an appeal can be taken pursuant to Section 3-115 of Title 40 of the Oklahoma Statutes.
Added by Laws 2002, c. 452, § 7, eff. Nov. 1, 2002.
§40-1-226. Initial claim - Additional initial claim.
A. "Initial Claim" means a new claim application submitted by a claimant to establish a benefit year for unemployment insurance benefits.
B. "Additional initial claim" means a claim application which reactivates a claim during an existing benefit year and certifies to a period of employment which occurred subsequent to the date of the filing of the last initial, additional or reopened claim.
Added by Laws 2004, c. 102, § 2, eff. Nov. 1, 2004.
§40-1-301. Other definitions applicable to extended benefits.
OTHER DEFINITIONS APPLICABLE TO EXTENDED BENEFITS. Other definitions applicable to extended benefits and the sections in which they appear are:
"Eligibility period" - Section 2-711
"Exhaustee" - Section 2-712
"Extended benefit period" - Section 2-703
"Extended benefits" - Section 2-710
"National 'off' indicator" - Section 2-705
"National 'on' indicator" - Section 2-704
"Rate of insured unemployment" - Section 2-708
"Regular benefits - Section 2-709
"State law" - Section 2-713
"State 'off' indicator" - Section 2-707
"State 'on' indicator" - Section 2-706
Added by Laws 1980, c. 323, § 1-301, eff. July 1, 1980.
§40-1-302. Index of other definitions.
INDEX OF OTHER DEFINITIONS. Other definitions in this act and the sections in which they appear are:
"Crew leader" - Section 1-210(5)(d)
"American employer" - Section 1-210(9)(d)
"United States" - Section 1-210(9)(e)
"Suitable work" - Section 2-408(2)
Added by Laws 1980, c. 323, § 1-302, emerg. eff. June 13, 1980.
§40-2-101. Applicability.
APPLICABILITY. The provisions of this part shall be applicable to the computation of benefits under this act.
Added by Laws 1980, c. 323, § 2-101, eff. July 1, 1980.
§40-2-102. Rounding provision.
ROUNDING PROVISION. Any benefit amount, any maximum benefit amount, or any payment amount computed under the provisions of this article that is not a multiple of One Dollar ($1.00) shall be computed to the next lower multiple of One Dollar ($1.00).
Added by Laws 1980, c. 323, § 2-102, eff. July 1, 1980. Amended by Laws 1983, c. 270, § 3, emerg. eff. June 23, 1983.
§40-2-103. Benefits paid from fund.
BENEFITS PAID FROM FUND. All benefits provided herein shall be payable from the fund. All benefits shall be paid through employment offices in accordance with such rules as the Commission may prescribe.
Added by Laws 1980, c. 323, § 2-103, eff. July 1, 1980. Amended by Laws 1993, c. 219, § 5, eff. Sept. 1, 1993.
§40-2-104. Computation of benefit amount.
COMPUTATION OF BENEFIT AMOUNT.
A. The weekly benefit amount of an individual shall be an amount equal to one twenty-third (1/23) of the taxable wages paid to the individual during that quarter of his base period in which such taxable wages were highest. If such amount is more than the maximum weekly benefit amount, it shall be reduced to the maximum weekly benefit amount or if the amount is less than Sixteen Dollars ($16.00), it shall be increased to Sixteen Dollars ($16.00).
B. The maximum weekly benefit amount shall be:
1. Prior to July 1, 1984, One Hundred Eighty-five Dollars ($185.00); and
2. Beginning July 1, 1984, the greater of:
a. One Hundred Ninety-seven Dollars ($197.00), or
b. (1) sixty percent (60%) of the average weekly wage of the second preceding calendar year during any calendar year in which the balance in the Unemployment Compensation Fund is in excess of the amount required to initiate conditional contribution rates, pursuant to the provisions of Section 3-113 of this title,
(2) fifty-seven and one-half percent (57.5%) of the average weekly wage of the second preceding calendar year during calendar years in which condition "a" exists,
(3) fifty-five percent (55%) of the average weekly wage of the second preceding calendar year during calendar years in which condition "b" exists,
(4) fifty-two and one-half percent (52.5%) of the average weekly wage of the second preceding calendar year during calendar years in which condition "c" exists, and
(5) fifty percent (50%) of the average weekly wage of the second preceding calendar year during calendar years in which condition "d" exists.
C. Before the last day of June of each year the Commission shall determine the average weekly wage of the preceding calendar year in the following manner:
1. The sum of the total monthly employment reported for the calendar year shall be divided by twelve (12) to determine the average monthly employment;
2. The sum of the total wages reported for the previous calendar year shall be divided by the average monthly employment to determine the average annual wage; and
3. The average annual wage shall be divided by fifty-two (52) to determine the average weekly wage.
Added by Laws 1980, c. 323, § 2-104, eff. July 1, 1980. Amended by Laws 1983, c. 270, § 4, emerg. eff. June 23, 1983; Laws 1998, c. 161, § 4, eff. July 1, 1998.
§40-2-105. Wages subtracted from benefit amount.
WAGES SUBTRACTED FROM BENEFIT AMOUNT.
Each eligible individual who is unemployed with respect to any week ending after July 1, 1994, shall be paid with respect to such week a benefit in an amount equal to the weekly benefit amount of the individual less that part of the wages, if any, payable to the individual with respect to such week which is in excess of One Hundred Dollars ($100.00). Each individual claiming benefits shall report all wages that the individual has been or will be paid for work performed during any week in which the individual claims unemployment benefits, regardless of the source or amount.
Added by Laws 1980, c. 323, § 2-105, eff. July 1, 1980. Amended by Laws 1994, c. 41, § 2, eff. July 1, 1994; Laws 1994, c. 349, § 2, eff. July 1, 1994; Laws 1998, c. 161, § 5, eff. July 1, 1998.
§40-2-106. Maximum benefit amount.
MAXIMUM BENEFIT AMOUNT.
An otherwise eligible individual shall be entitled during any benefit year to a total amount of benefits equal to whichever is the lesser of:
1. Twenty-six (26) times the weekly benefit amount of the individual;
2. The applicable percentage of the state's average annual wage for the second preceding calendar year as determined by the Commission, rounded to the nearest multiple of One Hundred Dollars ($100.00). The applicable percentage is determined by the conditional factor in place during the calendar year in which the individual files for benefits. The conditional factor is determined pursuant to the provisions of Section 3-113 of this title. The applicable percentages for this paragraph are as follows:
a. twenty-five percent (25%) during any calendar year in which the balance in the Unemployment Compensation Fund is in excess of the amount required to initiate conditional contribution rates, pursuant to the provisions of Section 3-113 of this title,
b. twenty-three and three-fourths percent (23.75%) during calendar years in which condition "a" exists,
c. twenty-two and one-half percent (22.5%) during calendar years in which condition "b" exists,
d. twenty-one and one-fourth percent (21.25%) during calendar years in which condition "c" exists, and
e. twenty percent (20%) during calendar years in which condition "d" exists; or
3. The applicable percentage of the individual's wages for insured work paid during the base period of the individual. The applicable percentage is determined by the conditional factor in place during the calendar year in which the individual files for benefits. The conditional factor is determined pursuant to the provisions of Section 3-113 of this title. The applicable percentages for this paragraph are as follows:
a. fifty percent (50%) during any calendar year in which the balance in the Unemployment Compensation Fund is in excess of the amount required to initiate conditional contribution rates, pursuant to the provisions of Section 3-113 of this title,
b. forty-seven and one-half percent (47.5%) during calendar years in which condition "a" exists,
c. forty-five percent (45%) during calendar years in which condition "b" exists,
d. forty-two and one-half percent (42.5%) during calendar years in which condition "c" exists, and
e. forty percent (40%) during calendar years in which condition "d" exists.
Added by Laws 1980, c. 323, § 2-106, eff. July 1, 1980. Amended by Laws 1983, c. 270, § 5, emerg. eff. June 23, 1983; Laws 1986, c. 205, § 2, emerg. eff. June 6, 1986; Laws 1998, c. 161, § 6, eff. July 1, 1998.
§40-2-107. Benefits - Portion of a week.
BENEFITS - PORTION OF A WEEK. Notwithstanding any other provisions of this act, the Commission may by rule prescribe that the existence of unemployment, eligibility for benefits and the amount of benefits payable shall be determined, in the case of any otherwise eligible claimant who, within a week of unemployment, is separated from, or secures, work on a regular attachment basis, for that portion of the week occurring before or after such separation from or securing of work, provided such rules are reasonably calculated to secure general results substantially similar to those provided by this act with respect to weeks of unemployment.
Added by Laws 1980, c. 323, § 2-107, eff. July 1, 1980. Amended by Laws 1993, c. 219, § 6, eff. Sept. 1, 1993.
§40-2-108. Benefits - Approved training.
BENEFITS - APPROVED TRAINING.
A. Notwithstanding any other provisions of law, no otherwise eligible individual shall be denied benefits for any week because the individual is in training with the approval of the Commission, nor shall such individual be denied benefits with respect to any week in which the individual is in training with the approval of the Commission by reason of the application of provisions of law relating to availability for work, active search for work, failure to apply for, or a refusal to accept, suitable work. Such approval for training shall be determined by consideration of all the following factors:
1. The individual's skills are obsolete or such that there are minimal opportunities for employment;
2. Training is for an occupation for which there is a substantial and recurring demand; and
3. The individual possesses aptitudes or skills which can be supplemented by retraining within a reasonable time.
B. Any individual in training approved by the Commission will produce satisfactory evidence of continued attendance and satisfactory progress. Failure to comply shall result in a disqualification of benefits for each week of occurrence.
Added by Laws 1980, c. 323, § 2-108, eff. July 1, 1980. Amended by Laws 1995, c. 340, § 4, eff. July 1, 1995.
§40-2-109. Employment requirement in preceding benefit year.
EMPLOYMENT REQUIREMENT IN PRECEDING BENEFIT YEAR. No individual may receive benefits in a benefit year unless, subsequent to the beginning of the next preceding benefit year during which he received benefits, he performed service and earned remuneration for such service in an amount equal to at least ten (10) times his weekly benefit amount in his current benefit year.
Added by Laws 1980, c. 323, § 2-109, eff. July 1, 1980.
§40-2-201. Applicability.
APPLICABILITY. The provisions of this part apply to eligibility to receive benefits under this act.
Added by Laws 1980, c. 323, § 2-201, eff. July 1, 1980.
§40-2-202. Conditions for eligibility.
CONDITIONS FOR ELIGIBILITY. An unemployed individual shall be eligible to receive benefits with respect to any week only if the Commission finds that he satisfies the provisions of this Part 2.
Added by Laws 1980, c. 323, § 2-202, eff. July 1, 1980.
§40-2-203. Claim.
CLAIM.
A. An unemployed individual must file an initial claim for unemployment benefits by calling an Oklahoma Employment Security Commission claims representative in a Commission Call Center, by completing the required forms through the Internet Claims service provided by the Commission, or by completing all forms necessary to process an initial claim in a local office of the Commission or any alternate site designated by the Commission to take unemployment benefit claims. The Commission may obtain additional information regarding an individual's claim through any form of telecommunication, writing, or interview. An unemployed individual must file a claim in writing or by telecommunication for benefits with respect to each week in accordance with such rule as the Commission may prescribe.
B. With respect to each week, he or she must provide the Commission with a true and correct statement of all material facts relating to: his or her unemployment; ability to work; availability for work; activities or conditions which could restrict the individual from seeking or accepting full-time employment immediately; applications for or receipt of workers' compensation benefits; employment and earnings; and the reporting of other income from retirement, pension, disability, self-employment, education or training allowances.
C. No claim will be allowed or paid unless the claimant resides within a state or foreign country with which the State of Oklahoma has entered into a reciprocal or cooperative arrangement pursuant to Part 7 of Article IV of the Employment Security Act of 1980.
Added by Laws 1980, c. 323, § 2-203, eff. July 1, 1980. Amended by Laws 1993, c. 219, § 7, eff. Sept. 1, 1993; Laws 1997, c. 30, § 6, eff. July 1, 1997; Laws 2002, c. 452, § 8, eff. Nov. 1, 2002; Laws 2003, c. 177, § 1, eff. Nov. 1, 2003.
§40-2-204. Registration employment.
REGISTRATION EMPLOYMENT. The unemployed individual must register for work at and thereafter continue to report at an employment office in accordance with such rules as the Commission may prescribe, except that the Commission may, by rule, waive or alter either or both the requirements of this section as to individuals attached to regular jobs and as to such other cases or situations involving mass layoffs or individuals in areas not served by an established employment office, with respect to which it finds that compliance with such requirements would be oppressive, or would be inconsistent with the purpose of this act.
Added by Laws 1980, c. 323, § 2-204, eff. July 1, 1980. Amended by Laws 1993, c. 219, § 8, eff. Sept. 1, 1993.
§40-2-205. Repealed by Laws 1990, c. 333, § 20, emerg. eff. May 31, 1990.
§40-2-205A. Ability to work and acceptance of employment.
The unemployed individual must be able to perform work duties in keeping with his education, training and experience. He must also be available to seek and accept work at any time and may not be engaged in any activity that would normally restrict his seeking or accepting employment in keeping with his education, training and experience.
The fact that an individual is enrolled in school shall not, in and of itself, render an individual ineligible for unemployment benefits. Such individual who is involuntarily unemployed and otherwise eligible for benefits and who offers to quit school, adjust class hours or change shifts in order to secure employment shall be entitled to benefits.
Added by Laws 1990, c. 333, § 3, emerg. eff. May 31, 1990.
§40-2-206. Waiting period.
WAITING PERIOD. The unemployed individual must have been unemployed for a waiting period of one (1) week. No week shall be counted as a week of unemployment for the purposes of this section:
(1) Unless it occurs within the benefit year which includes the week with respect to which he claims payment of benefits;
(2) If benefits have been paid with respect thereto;
(3) Unless the individual was eligible for benefits with respect thereto.
Added by Laws 1980, c. 323, § 2-206, eff. July 1, 1980.
§40-2-207. Wage requirement during base period.
WAGE REQUIREMENT DURING BASE PERIOD.
A. The unemployed individual, during the individual's base period, shall have been paid wages for insured work of not less than:
1. One Thousand Five Hundred Dollars ($1,500.00); and
2. One and one-half (1 1/2) times the amount of wages during that quarter of the individual's base period in which such wages were highest.
Notwithstanding the preceding provision, an individual with base period wages equal to or more than the highest annual amount of taxable wages that applies to any calendar year in which the claim for unemployment benefits was filed shall be eligible for benefits.
B. 1. If an individual lacks sufficient base period wages under subsection A of this section to establish a claim for benefits, any wages paid in the individual's alternative base period shall be considered as the individual's base period wages.
2. If the Commission has not received wage information from the individual's employer for the most recent calendar quarter of the alternative base period, the Commission shall accept an affidavit from the individual supported by wage information such as check stubs, deposit slips, or other supporting documentation to determine wages paid.
3. A determination of benefits based on an alternative base period shall be adjusted when the quarterly wage report is received from the employer, if the wage information in the report differs from that reported by the individual.
4. If alternative base period wages are established by affidavit of the individual, the employer to which the wages are attributed will have the right to protest the wages reported. If a protest is made, the employer must provide documentary evidence of wages paid to the individual. The Commission will determine the wages paid based on the preponderance of the evidence presented by each party.
5. Provided, no wages used to establish a claim under an alternative base period shall be subsequently used to establish a second benefit year.
6. Provided, in any calendar year in which the balance in the Unemployment Compensation Fund is below the amount required to initiate conditional factors pursuant to the provisions of Section 3-113 of this title, this subsection shall not apply and no alternative base period shall be available.
Added by Laws 1980, c. 323, § 2-207, eff. July 1, 1980. Amended by Laws 1983, c. 270, § 6, emerg. eff. June 23, 1983; Laws 1995, c. 340, § 5, eff. July 1, 1995; Laws 2002, c. 452, § 9, eff. Nov. 1, 2002.
§40-2-208. Aliens.
ALIENS. (1) Effective January 1, 1978, benefits shall not be paid on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services or otherwise is permanently residing in the United States under color of law at the time such services were performed, including an alien who is lawfully present in the United States as a result of the application of the provisions of Section 203(a)(7) or Section 212(d)(5) of the Immigration and Nationality Act. Provided, that any modifications to the provisions of Section 3304(a)(14) of the Federal Unemployment Tax Act as provided by Public Law 95-19 which specify other conditions or other effective dates than stated herein for the denial of benefits based on services performed by aliens and which modifications are required to be implemented under state law as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, shall be deemed applicable under the provisions of this subsection.
(2) Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits.
(3) In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of his alien status shall be made except upon a preponderance of the evidence.
Added by Laws 1980, c. 323, § 2-208, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 4, emerg. eff. June 25, 1981.
§40-2-209. Benefits for employees of governmental or nonprofit employers.
Benefits based on service in employment defined in paragraphs (2), (3) or (4) of Section 1-210 of this title, including any federally operated educational institutions, shall be payable in the same amount, on the same terms and subject to the same conditions as benefits payable on the basis of other service subject to the Employment Security Act of 1980, except that:
(1) With respect to service performed in an instructional, research or principal administrative capacity for an educational institution, benefits shall not be paid based on such services for any week of unemployment commencing during the period between two (2) successive academic years, or during a similar period between two regular but not successive terms, or during a period of paid sabbatical leave provided for in the individual's contract, to any individual if such individual performs such services in the first of such academic years or terms and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms.
(2) With respect to services performed in any other capacity for an educational institution, benefits shall not be paid on the basis of such services to any individual for any week which commences during a period between two (2) successive academic years or terms if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms, except that if compensation is denied to any individual under this paragraph and such individual was not offered an opportunity to perform such services for the educational institution for the second of such academic years or terms, such individual shall be entitled to a retroactive payment of compensation for each week for which the individual filed a timely claim for compensation and for which compensation was denied solely by reason of this clause.
(3) With respect to any services described in paragraphs (1) and (2) of this section, benefits shall not be payable on the basis of services in any such capacities to any individual for any week which commences during an established and customary vacation period or holiday recess if such individual performs such services in the period immediately before such vacation period or holiday recess, and there is a reasonable assurance that such individual will perform such services in the period immediately following such vacation period or holiday recess.
(4) With respect to any services described in paragraphs (1) and (2) of this section, benefits shall not be payable on the basis of services in any such capacities as specified in paragraphs (1), (2) and (3) of this section to any individual who performed such services in an educational institution while in the employ of an educational service agency. For purposes of this paragraph, the term "educational service agency" means a governmental agency or governmental entity which is established and operated exclusively for the purpose of providing such services to one or more educational institutions.
(5) With respect to services to which paragraphs (2), (3) or (4) of Section 1-210 of this title apply, if such services are provided to or on behalf of an educational institution, benefits shall not be payable under the same circumstances and subject to the same terms and conditions as described in paragraphs (1), (2), (3) and (4) of this section.
(6) If an individual has employment with an educational institution and has employment with a noneducation employer or employers during the base period of the individual's benefit year, the individual may become eligible for benefits during the between-term disqualification period, based only on the noneducational employment.
Added by Laws 1980, c. 323, § 2-209, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 5, emerg. eff. June 25, 1981; Laws 1982, c. 304, § 4, operative Oct. 1, 1982; Laws 1984, c. 252, § 2, emerg. eff. May 29, 1984; Laws 1986, c. 205, § 3, emerg. eff. June 6, 1986; Laws 2004, c. 102, § 3, eff. Nov. 1, 2004.
§40-2-301. Waiver void.
WAIVER VOID. Any agreement by an individual to waive, release, or commute his rights to benefits or any other rights under this act shall be void. Any agreement by any individual in the employ of any person or employing unit to pay all or any portion of an employer's contributions, required under this act from such employer, shall be void. No employer shall directly or indirectly make or require or accept any deduction from wages to finance the employer's contributions required from him or require or accept any waiver of any right hereunder by any individual in his employ, discriminate in regard to the hiring or tenure of work on any term or condition of work of any individual on account of his claiming benefits under this act, or in any manner obstruct or impede the filing of claims for benefits. Any employer or officer or agent of an employer who violates any provision of this section shall, for each offense, be fined not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00) or be imprisoned for not more than six (6) months, or both such fine and imprisonment.
Added by Laws 1980, c. 323, § 2-301, eff. July 1, 1980.
§40-2-302. Fee - No charge by Commission or its employees - Counsel fee subject to approval - Choice of representative.
A. No individual claiming benefits shall be charged fees or costs of any kind in any proceeding under this act by the Board of Review, the Commission, or its representatives, or by any court or any officer thereof, except that a court may assess costs against the claimant or employer if the court determines that the proceedings for judicial review have been instituted or continued without reasonable grounds. Any individual claiming benefits in any proceeding before the Commission or the Board of Review or its representatives or a court may be represented by counsel but no such counsel shall either charge or receive for such services more than an amount approved by the Board of Review. Any person who violates any provision of this section shall, for each such offense, be fined not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00), or imprisoned for not more than six (6) months, or both such fine and imprisonment.
B. Parties to any proceeding before the Commission or Board of Review may be represented in that proceeding by the individual of his or her choice regardless of whether or not that individual is an attorney duly licensed to practice law by the Supreme Court of the State of Oklahoma. Parties to any proceeding before a court of record of this state may appear pro se or the party must be represented by an attorney duly licensed to practice law by the Supreme Court of this state.
Added by Laws 1980, c. 323, § 2-302, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 6, emerg. eff. June 25, 1981; Laws 2003, c. 163, § 1, eff. Nov. 1, 2003.
§40-2-303. Assignments void, exemption from process.
ASSIGNMENTS VOID, EXEMPTION FROM PROCESS.
No assignment, pledge, or encumbrance of any right to benefits which are or may become due or payable under the Employment Security Act of 1980 shall be valid. All such rights to benefits shall be exempt from levy, execution, attachment, or any other remedy whatsoever provided for the collection of debt. Benefits received by an individual, so long as they are not mingled with other funds of the recipient, shall be exempt from any remedy whatsoever for the collection of all debts during the time the individual was unemployed, except those debts incurred for necessaries furnished to the individual or his or her spouse, or dependents, including child support obligations pursuant to Section 2-801 of this title, and debts created due to food stamp overissuances for which the individual is liable pursuant to Section 2-803 of this title. Benefits shall be subject to tax levies issued by the Internal Revenue Service in accordance with 26 U.S.C., Section 6331(h) provided an agreement is entered into between the Internal Revenue Service and the Oklahoma Employment Security Commission, and approved by the United States Department of Labor, that provides for the payment of all administrative costs associated with processing the tax levies. No waiver of any exemption provided for in this section shall be valid.
Added by Laws 1980, c. 323, § 2-303, eff. July 1, 1980. Amended by Laws 1982, c. 304, § 5, operative Oct. 1, 1982; Laws 1997, c. 30, § 7, eff. July 1, 1997; Laws 1998, c. 161, § 7, eff. July 1, 1998.
§402304. Deduction of health insurance premiums.
Notwithstanding the provisions of Sections 2301 and 2303 of Title 40 of the Oklahoma Statutes, nothing shall be construed to prohibit the deduction of an amount from unemployment compensation otherwise payable to an individual to pay for health insurance premiums if such individual elected to have such deduction made and such deduction is made under a program approved by the United States Secretary of Labor. For purposes of this section, the term "premium" shall only include the sum of money agreed to be paid by the insured individual to the underwriter as consideration for the insurance.
Added by Laws 1984, c. 252, § 3, emerg. eff. May 29, 1984.
§40-2-305. Deduction of individual income tax withholdings.
DEDUCTION OF INDIVIDUAL INCOME TAX WITHHOLDINGS.
Notwithstanding the provisions of Sections 2-301 and 2-303 of this title, nothing shall be construed to prohibit the deduction of an amount from unemployment compensation, otherwise payable to an individual, to pay the withholding of federal or state individual income tax, if that individual elected to have such a deduction made and that deduction is made under a program approved by the United States Secretary of Labor. For the purposes of this section, if an individual elects to have this deduction taken from his or her weekly benefits, the federal withholding will be deducted at the percentage specified in the Federal Internal Revenue Code at 26 U.S.C., Section 3402(p)(2), and three percent (3%) of the total benefit amount will be deducted to pay the state withholding.
Added by Laws 1995, c. 340, § 6, eff. Jan. 1, 1997. Amended by Laws 2002, c. 452, § 10, eff. Nov. 1, 2002.
§40-2-401. Application of Part 4.
APPLICATION OF PART 4. This part applies to disqualification for benefits.
Added by Laws 1980, c. 323, § 2-401, eff. July 1, 1980.
§40-2-402. Fraud.
FRAUD.
A. If the Oklahoma Employment Security Commission determines that any individual has made a false statement or representation or has failed to disclose a material fact in violation of Section 5-102 of this title, the individual shall be ineligible to receive unemployment compensation for the week that determination is made by the Commission and for the next following fifty-one (51) weeks, and no benefit year shall be established during such period of ineligibility. After a determination has been made that an individual has violated Section 5-102 of this title in a particular benefit year, if the Commission determines that another violation of that section has occurred in any subsequent benefit year, the individual shall be ineligible to receive unemployment compensation for the week in which the subsequent determination is made by the Commission and for the next following one hundred three (103) weeks, and no benefit year shall be established during such period of ineligibility.
B. If the Commission makes a determination as described in subsection A of this section, the individual shall be disqualified for each week benefits were paid as a result of a false statement or representation or a failure to disclose a material fact, and the individual shall be deemed overpaid for the entire amount of benefits paid as a result of claimant fraud.
C. The ineligibility and disqualification set forth in subsections A and B of this section are in addition to the penalty provided by Section 5-102 of this title, and shall be invoked irrespective of whether such individual is prosecuted for violation of Section 5-102 of this title, when the Commission makes such a determination of ineligibility or disqualification.
D. A determination of fraud must be made within two (2) years of the date on which the violation occurred.
Added by Laws 1980, c. 323, § 2-402, eff. July 1, 1980. Amended by Laws 2002, c. 452, § 11, eff. Nov. 1, 2002.
§40-2-403. Repealed by Laws 1990, c. 333, § 20, emerg. eff. May 31, 1990.
§40-2-404. Leaving work voluntarily.
LEAVING WORK VOLUNTARILY. An individual shall be disqualified for benefits for leaving his last work voluntarily without good cause connected to the work, if so found by the Commission. Disqualification under this subsection shall continue for the full period of unemployment next ensuing after he has left his work voluntarily without good cause connected to the work and until such individual has become reemployed and has earned wages equal to or in excess of ten (10) times his weekly benefit amount. Good cause shall include but not be limited to unfair treatment of the employee or the creating of unusually difficult working conditions by the employer.
Added by Laws 1980, c. 323, § 2-404, eff. July 1, 1980.
§40-2-404A. Leaving work voluntarily of temporary employee.
A. For the purposes of this section:
1. "Temporary help firm" means a firm that hires its own employees and assigns them to clients to support or supplement the client's work force in work situations such as employee absences, temporary skill shortages, seasonal workloads and special assignments and projects; and
2. "Temporary employee" means an employee assigned to work for the clients of a temporary help firm.
B. A temporary employee of a temporary help firm will be deemed to have left his or her last work voluntarily without good cause connected with the work if the temporary employee does not contact the temporary help firm for reassignment on completion of an assignment. A temporary employee will not be deemed to have left work voluntarily without good cause connected with the work unless the temporary employee has been advised of the obligation to contact the temporary help firm on completion of assignments and that unemployment benefits may be denied for failure to do so.
C. For the purposes of the Employment Security Act of 1980, the temporary help firm is deemed to be the employer of the temporary employee.
Added by Laws 1995, c. 340, § 7, eff. July 1, 1995.
§40-2-404B. Work of a limited duration of time.
WORK OF A LIMITED DURATION OF TIME.
A. When an employer employs a worker for a limited duration of time specified by the employer, the worker is considered to have been laid off due to lack of work at the end of the time period set by the employer, provided that the worker's separation was due only to the completion of the work or the expiration of the time period.
B. When an employer employs a worker for a limited duration of time specified by the worker, the worker is considered to have voluntarily quit work at the end of the time period set by the worker, provided that the worker's separation was due only to the expiration of the time period.
Added by Laws 2003, c. 177, § 2, eff. Nov. 1, 2003.
§40-2-405. Determining good cause.
DETERMINING GOOD CAUSE.
Good cause for voluntarily leaving work under Section 2-404 of this title may include, among other factors, the following:
1. A job working condition that had changed to such a degree it was so harmful, detrimental, or adverse to the individual's health, safety, or morals, that leaving such work was justified;
2. If the claimant, pursuant to an option provided under a collective bargaining agreement or written employer plan which permits waiver of his or her right to retain the employment when there is a layoff, has elected to be separated and the employer has consented thereto;
3. If the claimant was separated from employment with the employer because a physician diagnosed or treated a medically verifiable illness or medical condition of the claimant or the minor child of the claimant, and the physician found that it was medically necessary for the claimant to stop working or change occupations;
4. If the spouse of the claimant was transferred or obtained employment in another city or state, and the family is required to move to the location of that job that is outside of commuting distance from the prior employment of the claimant, and the claimant separates from employment in order to move to the new employment location of the spouse. As used in this paragraph, "commuting distance" means a radius of fifty (50) miles from the prior work location of the claimant; or
5. If the claimant separated from employment as part of a plan to escape domestic violence or abuse.
Added by Laws 1980, c. 323, § 2-405, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 7, emerg. eff. June 25, 1981; Laws 1997, c. 30, § 8, eff. July 1, 1997; Laws 1998, c. 161, § 8, eff. July 1, 1998; Laws 2003, c. 177, § 3, eff. Nov. 1, 2003; Laws 2005, c. 182, § 4, eff. Nov. 1, 2005.
§40-2-406. Discharge for misconduct.
DISCHARGE FOR MISCONDUCT. An individual shall be disqualified for benefits if he has been discharged for misconduct connected with his last work, if so found by the Commission. Disqualification under this section shall continue for the full period of unemployment next ensuing after he has been discharged for misconduct connected with his work and until such individual has become reemployed and has earned wages equal to or in excess of ten (10) times his weekly benefit amount.
Added by Laws 1980, c. 323, § 2-406, eff. July 1, 1980.
§40-2-406A. Discharge for refusal to undergo drug or alcohol testing or confirmed positive test - Disqualification for benefits.
An employee discharged on the basis of a refusal to undergo drug or alcohol testing or a confirmed positive drug or alcohol test conducted in accordance with the provisions of the Standards for Workplace Drug and Alcohol Testing Act shall be considered to have been discharged for misconduct and shall be disqualified for benefits pursuant to the provisions of Section 2-406 of Title 40 of the Oklahoma Statutes.
Added by Laws 1993, c. 355, § 16, emerg. eff. June 10, 1993.
§40-2-407. Repealed by Laws 1994, c. 166, § 4, eff. Sept. 1, 1994.
§40-2-408. Suitable work.
SUITABLE WORK. (1) In determining whether or not any work is suitable for an individual, there shall be considered among other factors and in addition to those enumerated in Section 2-409 the length of his unemployment, his prospects for obtaining work in his customary occupation, the distance of available work from his residence and prospects for obtaining local work.
(2) Suitable work shall be defined as employment in an occupation in keeping with the individual's prior work experience, education or training, or having no prior work experience, special education or training for occupations available in the general area then, employment for which the individual would have the physical and mental ability to perform.
(3) Upon receipt of fifty percent (50%) of his benefits, suitable work shall not be limited to his customary or registered occupation.
Added by Laws 1980, c. 323, § 2-408, eff. July 1, 1980.
§40-2-409. Conditions exempting otherwise suitable work.
CONDITIONS EXEMPTING OTHERWISE SUITABLE WORK. Notwithstanding any other provisions of this act, no work shall be deemed suitable and benefits shall not be denied under this act to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
(1) If the position offered is vacant due directly to a strike, lockout or other labor dispute;
(2) If the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;
(3) If as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization;
(4) If the new work involved a substantial degree of risk to his health, safety or morals.
Added by Laws 1980, c. 323, § 2-409, eff. July 1, 1980.
§40-2-410. Participation in labor disputes.
PARTICIPATION IN LABOR DISPUTES. (1) An individual shall be disqualified to receive benefits for any week with respect to which the Commission finds that his unemployment is due to a stoppage of work which exists at the factory, establishment or other premises at which he is or was last employed, because of a labor dispute.
(2) This section shall not apply if it is shown that:
(a) He is not participating in or directly interested in the labor dispute which caused the stoppage of work;
(b) He does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or directly interested in the dispute; or
(c) The employer has locked out his employees.
(3) Provided, that if in any case separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purpose of this section, be deemed to be a separate factory, establishment or other premises.
Added by Laws 1980, c. 323, § 2-410, eff. July 1, 1980.
§40-2-411. Retirement payments.
RETIREMENT PAYMENTS. (1) Except for any payment or benefit payment made pursuant to the federal Social Security Act, an individual shall be disqualified for benefits for any week which begins in a period with respect to which such individual is receiving a governmental or other pension, retirement or retired pay, annuity or any other similar periodic retirement payment which is based on the previous work of such individual if:
(a) such pension, retirement or retired pay, annuity or similar payment is under a plan maintained, or contributed to, by a base period or chargeable employer; and
(b) in the case of such a payment not made under the Railroad Retirement Act of 1974, 45 U.S.C., Section 231 et seq., services performed for such employer by the individual after the beginning of the base period, or remuneration for such services, affect eligibility for or increase the amount of, such pension, retirement or retired pay, annuity or similar payment.
(2) If the total of such remuneration is less than the benefits which would otherwise be due under the Employment Security Act of 1980, Section 1-101 et seq. of this title, the individual shall be entitled to receive for such week, if otherwise eligible, benefits reduced by the amount of such remuneration.
(3) If payments referred to in this section are being received by an individual under the federal Social Security Act, the Commission shall take into account the individual's contribution to social security and make no reduction in the weekly benefit amount.
Added by Laws 1980, c. 323, § 2-411, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 8, emerg. eff. June 25, 1981; Laws 1982, c. 304, § 6, operative Oct. 1, 1982; Laws 1993, c. 46, § 1, emerg. eff. April 9, 1993; Laws 1995, c. 340, § 8, eff. July 1, 1995.
§40-2-412. Receiving benefits from another state.
RECEIVING BENEFITS FROM ANOTHER STATE. An individual shall be disqualified for benefits for any week with respect to which or a part of which he has received or is seeking unemployment benefits under an unemployment compensation law of another state or of the United States. Provided, that if the appropriate agency of such other state or of the United States in which the individual was seeking benefits, but had not received benefits, finally determines that he is not entitled to such unemployment benefits, this disqualification shall not apply.
Added by Laws 1980, c. 323, § 2-412, eff. July 1, 1980.
§40-2-413. Inmates during confinement.
INMATES DURING CONFINEMENT. No inmate of the State Department of Corrections shall during confinement be eligible to receive benefits under this act.
Added by Laws 1980, c. 323, § 2-413, eff. July 1, 1980.
§40-2-414. Pregnant women not disqualified.
PREGNANT WOMEN NOT DISQUALIFIED. Nothing in this act shall prohibit pregnant women, who otherwise qualify for benefits under this title, from receiving said benefits for the full number of weeks to which they are entitled.
Added by Laws 1980, c. 323, § 2-414, eff. July 1, 1980.
§40-2-415. Participating in sports or athletic events.
PARTICIPATING IN SPORTS OR ATHLETIC EVENTS. Benefits shall not be paid to any individual on the basis of any services, substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, for any week which commences during the period between two successive sport seasons or similar periods if such individual performed such services in the first of such season or similar periods and there is a reasonable assurance that such individual will perform such services in the latter part of such seasons or similar periods.
Added by Laws 1980, c. 323, § 2-415, emerg. eff. June 13, 1980.
§40-2-416. Prohibition against disqualification of individuals taking approved training under Trade Act.
PROHIBITION AGAINST DISQUALIFICATION OF INDIVIDUALS TAKING APPROVED TRAINING UNDER TRADE ACT. No individual shall be denied benefits for any week because such individual is in training approved under Section 236(a)(1) of the Trade Act of 1974. An individual shall not be denied benefits by reason of leaving work to enter such training, provided the work left is not suitable employment, or because of the application, to any such week in training, of the provisions of the Employment Security Act of 1980 or any applicable federal unemployment compensation law, relating to availability for work, active search for work, or refusal to accept work. For purposes of this section, the term "suitable employment" means with respect to an individual, work of a substantially equal or higher skill level than the adversely affected past employment of the individual, as defined for purposes of the Trade Act of 1974, and wages for such work at not less than eighty percent (80%) of the average weekly wage of the individual as determined for the purposes of the Trade Act of 1974.
Added by Laws 1982, c. 304, § 7, operative Oct. 1, 1982.
§40-2-417. Seek and accept work - Week of occurrence disqualification.
SEEK AND ACCEPT WORK - WEEK OF OCCURRENCE DISQUALIFICATION. An individual shall be disqualified to receive benefits for each week in which the individual shall have failed to do any of the following:
1. Diligently search for suitable employment at a pay rate generally available in that area of the state in keeping with his or her prior experience, education and training;
2. Make application for work with employers who could reasonably be expected to have work available within that general geographic area of the state;
3. Present oneself as an applicant for employment in a manner designed to encourage favorable employment consideration; or
4. Participate in reemployment services, such as job search assistance services, if the individual has been determined likely to exhaust regular benefits and needs reemployment services pursuant to a profiling system established by the Oklahoma Employment Security Commission. An individual will not be disqualified under this paragraph for failure to participate in reemployment services, if:
a. the individual has previously completed reemployment services, or
b. there is justifiable cause for the individual's failure to participate in reemployment services.
Added by Laws 1994, c. 166, § 1, eff. Sept. 1, 1994. Amended by Laws 1995, c. 340, § 9, eff. July 1, 1995.
§40-2-418. Seek and accept work - Indefinite disqualification.
SEEK AND ACCEPT WORK - INDEFINITE DISQUALIFICATION. A. An individual shall be disqualified to receive benefits for the full period of unemployment next ensuing after the individual shall have failed to do any of the following:
1. Accept an offer of work from an employer including any former employer;
2. Apply for or accept work when so directed by the Employment Office of the Commission; or
3. Accept employment pursuant to a hiring hall agreement when so offered.
Such disqualification shall continue until the individual has become reemployed and has earned wages equal to or in excess of ten (10) times his or her weekly benefit amount.
B. Any individual who shall have failed in any of the requirements of subsection A of this section due to illness, death of a family member or other extenuating circumstance beyond his or her control shall be disqualified for regular benefits under this section only for the week of the occurrence of such circumstance beyond his or her control. Any individual who is disqualified under this subsection only for the week of the occurrence of such circumstance beyond his or her control shall not thereafter be or become eligible for extended benefits for the purposes of Sections 2-701 through 2-724 of Title 40 of the Oklahoma Statutes until such individual has become reemployed and has earned wages equal to at least ten times his or her weekly benefit amount.
Added by Laws 1994, c. 166, § 2, eff. Sept. 1, 1994.
§40-2-419. Acceptance of accelerated buyout of employment contract - Definition.
An individual shall be disqualified for unemployment benefits if that individual has accepted an accelerated buyout of a written employment contract from the employer. Disqualification under this section shall continue for the full period of unemployment next ensuing after the individual has accepted the contract buyout connected with the work of the individual and until such individual has become reemployed and has earned wages equal to or in excess of ten times the weekly benefit amount of the individual.
For purposes of this section, "accelerated buyout" shall mean a purchase of the remaining terms of a written employment contract in a single payment of One Hundred Thousand Dollars ($100,000.00) or more.
Added by Laws 2004, c. 88, § 1, emerg. eff. April 13, 2004.
§40-2-501. Applicability.
APPLICABILITY. This part applies to procedures for benefits.
Added by Laws 1980, c. 323, § 2-501, eff. July 1, 1980.
§40-2-502. Posting of information.
POSTING OF INFORMATION. Each employer shall post and maintain in places readily accessible to individuals in his employ printed statements concerning benefit rights, claims for benefits and such other matters relating to the administration of this act as the Commission may by rule prescribe. Each employer shall supply to such individuals copies of such printed statements or other materials relating to claims for benefits when and as the Commission may by rule prescribe. Such printed statements and other materials shall be supplied by the Commission to each employer without cost to the employer.
Added by Laws 1980, c. 323, § 2-502, eff. July 1, 1980. Amended by Laws 1993, c. 219, § 9, eff. Sept. 1, 1993.
§40-2-503. Claims, notices and objections.
CLAIMS, NOTICES AND OBJECTIONS.
A. Claims for benefits shall be made in accordance with such rule as the Oklahoma Employment Security Commission may prescribe.
B. Promptly after the initial claim or the additional initial claim is filed the Commission shall give written notice of the claim to the last employer of the claimant for whom he or she worked at least fifteen (15) working days.
C. Promptly after the claim is paid for the fifth week of benefits the Commission shall give written notice of the claim to all other employers of the claimant during the claimant's base period. The notice will be given pursuant to Section 3-106 of this title.
D. Notices shall be deemed given when the Commission deposits the same in the United States mail addressed to the employer's last-known address. Notice shall be presumed prima facie to have been given to the employer to whom addressed on the date stated in the written notice.
E. Within ten (10) days after the date on the notice or the date of the postmark on the envelope in which the notice was sent, whichever is later, an employer may file with the Commission at the address prescribed in the notice written objections to the claim setting forth specifically the facts which:
1. Make the claimant ineligible for benefits under Sections 2-201 through 2-209 of this title;
2. Disqualify the claimant from benefits under Sections 2-401 through 2-418 of this title; or
3. Relieve such employer from being charged for the benefits wages of such claimant.
Added by Laws 1980, c. 323, § 2-503, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 9, emerg. eff. June 25, 1981; Laws 1993, c. 219, § 10, eff. Sept. 1, 1993; Laws 1995, c. 340, § 10, eff. Jan. 1, 1996; Laws 1997, c. 30, § 9, eff. July 1, 1997; Laws 2004, c. 102, § 4, eff. Nov. 1, 2004.
§40-2-504. Determinations of benefits.
DETERMINATIONS OF BENEFITS. A determination upon a claim for benefits shall be made promptly by a representative of the Commission. It shall include a statement as to whether and in what amount claimant is entitled to benefits for the week with respect to which the determination is made. In the event the claimant is determined to be ineligible for or disqualified from benefits under Part 2 or Part 4 of this Article the determination shall state the reasons therefor. The initial determination in a benefit year shall include a statement as to whether the claimant has been paid the wages required under this act, and if so, the beginning and ending dates of the benefit year, the weekly benefit amount, and the maximum total amount of benefits payable to him with respect to such benefit year.
Added by Laws 1980, c. 323, § 2-504, eff. July 1, 1980.
§40-2-505. Determinations in labor dispute cases.
DETERMINATIONS IN LABOR DISPUTE CASES. Whenever any claim involves the application of the provisions of Section 2-410, the representative of the Commission first considering the claim shall, if so directed by the Commission, promptly transmit such claim and all filed objections thereto to an appeal tribunal which shall make a determination upon the issues involved under that section. Such appeal tribunal shall make the determination thereon after affording the claimant and each employer who filed an objection an opportunity for a hearing in accordance with the provisions of this section with respect to hearings and determinations of appeal tribunals. The parties shall be promptly notified of the determination, together with the reasons therefor. Such determination shall be the final decision on the claim, unless, within ten (10) days after the mailing of notice to a party's last-known address, appeal is filed with the Board of Review.
Added by Laws 1980, c. 323, § 2-505, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 10, emerg. eff. June 25, 1981.
§40-2-506. Redeterminations.
REDETERMINATIONS. The Commission may reconsider a determination only when it finds that an error in computation or identity has occurred in connection therewith, or that wages of the claimant pertinent to such determination, but not considered in connection therewith, have been newly determined, or that benefits have been allowed or denied or the amount of benefits fixed on the basis of misrepresentation or mistake of material facts, but no such redetermination shall be made after the expiration of the benefit year established by the initial determination, except that a determination made because of a false statement or representation or failure to disclose a material fact in violation of Section 5-102 may be redetermined within two (2) years from the date of such false statement or representation or failure to disclose. Notice of any such redetermination shall be promptly given to the parties entitled to notice of the original determination, in the manner prescribed in this act with respect to notice of an original determination. If the amount of benefits is increased upon such redetermination, an appeal therefrom solely with respect to the matters involved in such increase may be filed in the manner and subject to the limitations provided in this Part 5. If the amount of benefits is decreased upon such redetermination, the matters involved in such decrease shall be subject to review in connection with an appeal by claimant from any determination upon a subsequent claim for benefits which may be affected in amount or duration by such redetermination. Subject to the same limitations and for the same reasons, the Commission may reconsider the determination in any case in which the final decision has been rendered by an appeal tribunal, the Board of Review or a court, and may apply to the body or court which rendered such final decision to issue a revised decision. In the event that an appeal involving an original determination is pending as of the date a redetermination thereof is issued, such appeal, unless withdrawn, shall be treated as an appeal from such redetermination.
Added by Laws 1980, c. 323, § 2-506, eff. July 1, 1980.
§40-2-507. Notice of determinations.
NOTICE OF DETERMINATIONS.
Notice of a determination upon a claim shall be given promptly to the claimant by delivery thereof or by mailing such notice to the claimant's last-known address. Notice of a determination shall also be given promptly to the last employer of the claimant, for whom the claimant worked at least fifteen (15) working days, that objected to the claim in accordance with the provisions of subsection E of Section 2-503 of this title and to each other employer who timely filed a written objection to the claim.
Added by Laws 1980, c. 323, § 2-507, emerg. eff. June 13, 1980. Amended by Laws 1981, c. 259, § 11, emerg. eff. June 25, 1981; Laws 1997, c. 30, § 11, eff. July 1, 1997.
§40-2-601. Applicability.
APPLICABILITY. This part applies to appeals from determinations of the Commission or its representatives to its appeals tribunal, to appeals from decisions of its appeals tribunal to the Board of Review and to judicial review of decisions of the Board of Review.
Added by Laws 1980, c. 323, § 2-601, eff. Oct. 1, 1980.
§40-2-602. Appeal referees.
APPEAL REFEREES. (1) The Executive Director, with approval by the Commission, shall appoint one or more referees who shall constitute the appeal tribunal. The referees shall act under the direct supervision of the Executive Director.
(2) Each appeal from a determination made by the Commission or one of its representatives shall be assigned to a referee who shall conduct a hearing after notice to the parties, receive the evidence in such hearing and decide the appeal.
Added by Laws 1980, c. 323, § 2-602, eff. Oct. 1, 1980. Amended by Laws 1982, c. 304, § 8, operative Oct. 1, 1982; Laws 1991, c. 295, § 1, eff. Sept. 1, 1991.
§40-2-603. Appeal tribunal.
APPEAL TRIBUNAL.
The claimant or any other party entitled to notice of a determination may file an appeal from such determination with the appeal tribunal within ten (10) days after the date of mailing of the notice to the claimant's or other party's last-known address or, if such notice is not mailed, within ten (10) days after the date of delivery of such notice. The claimant or other party may file an appeal in any manner allowed by Section 1-224 of this title or by telephone through the Commission's interactive voice response system or by speaking with one of the Commission's claims representatives. In order to be considered timely, filing of an appeal made by telephone through the interactive voice response system shall be completed by 12 midnight on the date it is due, and filing of an appeal made by telephone through a claims representative must be completed before the end of normal business hours.
Added by Laws 1980, c. 323, § 2-603, eff. Oct. 1, 1980. Amended by Laws 2002, c. 452, § 12, eff. Nov. 1, 2002.
§40-2-604. Hearing.
HEARING. The appeal referee to whom the appeal is assigned, after affording the parties reasonable opportunity for a fair hearing, shall make findings and conclusions, and on the basis thereof affirm, modify, or reverse such determination; provided, however, that whenever an appeal involves a question as to whether services were performed by claimant in employment or for an employer, or as to amount of wages reported by an employer for claimant, the tribunal referee shall give special notice of such issue and of the pendency of the appeal by mail to the employer and to the Commission, both of whom shall thenceforth be parties to the proceeding and be afforded a reasonable opportunity to adduce evidence bearing on such questions; provided, that any party who enters an appearance before the tribunal referee waives the requirement of special notice by mail.
Added by Laws 1980, c. 323, § 2-604, eff. Oct. 1, 1980.
§40-2-605. Notice of referee decision.
NOTICE OF REFEREE DECISION. The parties shall be promptly notified of such referee's decision and shall be furnished with a copy of the decision, including the findings and conclusions in support thereof. Such decision shall be final unless, within ten (10) days after the date of mailing of notice thereof to the parties' last-known addresses, or, in the absence of such mailing, within ten (10) days after the delivery of such notice, further review before the Board of Review is initiated pursuant to Section 2-606.
Added by Laws 1980, c. 323, § 2-605, eff. Oct. 1, 1980.
§40-2-606. Appeals from tribunal referee decisions to Board of Review.
The Board of Review shall review the record of an appeal filed by any of the parties entitled to notice on a determination of an appeal tribunal referee. An appeal to the Board of Review may be filed in any manner allowed by Section 1-224 of this title. On such further appeal the Board of Review may affirm, modify or reverse any decision of an appeal tribunal referee on the basis of evidence previously submitted, or on the basis of additional evidence as it may adduce, or, at its direction, received by an appeal tribunal referee. The Board of Review may conduct a formal hearing upon a request of a party or on its own motion. Any formal hearing shall be conducted by one or more members of the Board of Review as it may determine or by a hearing officer designated by the Board of Review. The Board of Review shall promptly notify the parties of its findings and decision, and such decision shall be final unless within ten (10) days after the mailing of notice thereof to the parties' last-known addresses, a proceeding for judicial review is initiated.
Added by Laws 1980, c. 323, § 2-606, eff. Oct. 1, 1980. Amended by Laws 1982, c. 304, § 9, operative Oct. 1, 1982; Laws 2004, c. 102, § 5, eff. Nov. 1, 2004.
§40-2-607. Rules and procedures in appeals.
RULES AND PROCEDURES IN APPEALS.
The Board of Review and appeal referees shall conduct any hearing or appeal in such manner as to ascertain the substantial rights of the parties. The Board of Review shall adopt reasonable rules governing the manner of filing appeals and the conduct of hearings and appeals before the Board of Review, consistent with the provisions of the Employment Security Act of 1980. The Oklahoma Employment Security 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, which rules shall provide for one hearing before a referee near the place of the last employment involved in an intrastate appeal. When the same or substantially similar evidence is relevant and material to the matters in issue in claims by more than one individual or in claims by a single individual with respect to two (2) or more weeks of unemployment, the same time and place for considering each such claim may be fixed, hearings thereon jointly conducted, a single record of the proceedings made, and evidence introduced with respect to one proceeding considered as introduced in the others, provided that in the judgment of the appeal tribunal referee having jurisdiction of the proceeding, such consolidation would not be prejudicial to any party. No person shall participate as an appeal tribunal referee or member of the Board of Review on any case in which the person has a personal interest. A record shall be kept of all testimony and proceedings before an appeal tribunal referee or the Board of Review in connection with an appeal, but the testimony need not be transcribed unless judicial review is initiated. Witnesses subpoenaed pursuant to this section shall be allowed fees at a rate fixed by the Commission, and fees of witnesses subpoenaed on behalf of the Commission or any claimant, or the Board of Review, shall be deemed part of the expense of administering the Employment Security Act of 1980.
Added by Laws 1980, c. 323, § 2-607, eff. Oct. 1, 1980. Amended by Laws 1982, c. 304, § 10, operative Oct. 1, 1982; Laws 1990, c. 333, § 4, emerg. eff. May 31, 1990; Laws 1998, c. 161, § 9, eff. July 1, 1998.
§40-2-608. Conclusiveness of determinations and decisons.
CONCLUSIVENESS OF DETERMINATIONS AND DECISONS. Except insofar as reconsideration of any determination is had under Section 2-506, any right, fact, or matter in issue, directly passed upon or necessarily involved in a determination or redetermination which has become final, or in a decision on appeal under this subsection which has become final, shall be conclusive for all the purposes of this act as between the Commission, the claimant, and all employers who had notice of such determination, redetermination, or decision. Subject to appeal proceedings and judicial review as provided in this act, any determination, redetermination or decision as to rights to benefits shall be conclusive for all the purposes of this act and shall not be subject to collateral attack by any party.
Added by Laws 1980, c. 323, § 2-608, eff. Oct. 1, 1980.
§40-2-609. Rule of decision.
RULE OF DECISION. The final decisions of the Board of Review, or of a referee, and the principles of law declared in arriving at such decision, unless expressly or impliedly overruled by a later decision of the Board of Review or by a court of competent jurisdiction, shall be binding upon the Commission and referees in subsequent proceedings which involve the same questions of law; provided, however, that if in connection with any subsequent proceeding a referee has serious doubt as to the correctness of any principle so declared he may certify his findings of fact in such case, together with the question of law involved, to the Board of Review, which, after giving notice and reasonable opportunity for hearing to all parties to such proceeding, shall thereupon certify to the Commission or such referee and such parties its answer to the question submitted. If the question thus certified to the Board arises in connection with a claim for benefits, the Board of Review in its discretion may remove to itself the entire proceedings on such claim, and, after proceeding in accordance with the requirements of this Part with respect to proceedings before a referee, shall render its decision upon the entire claim. Any decision made under this section after removal of the proceeding to the Board shall be a decision of the Board of Review and shall be subject to judicial review.
Added by Laws 1980, c. 323, § 2-609, eff. Oct. 1, 1980.
§40-2-610. Judicial review.
JUDICIAL REVIEW. (1) Within the ten (10) days after the day a notice of decision of the Board of Review is mailed to the parties, the Commission, or any party to the proceedings before the Board of Review, may obtain judicial review thereof by filing in the district court of the county in which the claimant resides, or if the claimant is not a resident of the State of Oklahoma then in the district court of Oklahoma County, a petition for review of such decision, against the Board of Review. In such petition for review all other parties to the proceeding before the Board of Review and the Commission shall be made codefendants. Such petition for review need not be verified but shall state specifically the grounds upon which such review is sought. A copy of the petition for review shall be served upon a member of the Board of Review or upon such persons as the Board of Review may designate and the petitioner shall also deliver to the person so served as many copies of the petition as there are defendants. The Board of Review shall forthwith send by mail to each other party to the proceeding a copy of such petition, and such mailing shall be deemed to be service upon all such parties. In any proceeding under this section the findings of the Board of Review as to the facts, if supported by evidence, shall be conclusive and the jurisdiction of said court shall be confined to questions of law. No additional evidence shall be received by the court, but the court may remand the case and order additional evidence to be taken before the Board of Review, and the Board may, after hearing such additional evidence, modify its findings of fact or conclusions, and file such additional or modified findings and conclusions, together with the transcript of the additional record, with the court.
(2) With its answer to the petition, the Board of Review shall certify and file with the court a certified copy of the record of the case, including all documents and papers and a transcript of all testimony taken in the matter, together with the Board of Review's findings, conclusions, and decision therein.
(3) Such proceedings shall be heard in a summary manner and shall be given precedence over all other civil cases. An appeal may be taken from the decision of the district court to the Supreme Court of this state in the same manner as is provided in other civil cases. It shall not be necessary as a condition precedent to judicial review of any decision of the Board of Review to enter exceptions to the rulings of such Board, and no bond shall be required as a condition of initiating a proceeding for judicial review or entering an appeal from the decision of the court upon such review. Upon the final termination of such judicial proceeding, the Board of Review shall enter an order in accordance with the mandate of the court.
Added by Laws 1980, c. 323, § 2-610, eff. Oct. 1, 1980.
§40-2-610A. Conclusiveness of proceedings.
Any findings of fact or law, judgment, conclusion or final order made by the Oklahoma Employment Security Commission, its referees, the Appeal Tribunal or Board of Review in an unemployment insurance proceeding shall not be conclusive or binding in any separate or subsequent action or proceeding, and shall not be used as evidence in any separate or subsequent action or proceeding, between an individual and his or her present or prior employer in any other forum regardless of whether or not the prior action was between the same or related parties or involved the same facts.
Added by Laws 1991, c. 295, § 2, eff. Sept. 1, 1991.
§40-2-611. Commission is a party.
COMMISSION IS A PARTY. The Commission shall be a party to and entitled to notice in any proceeding involving a claim for benefits before a referee or the Board of Review. In any proceeding for judicial review the Commission may be represented by any attorney employed by the Commission or designated by it for that purpose or, at the Commission's request, by the Attorney General.
Added by Laws 1980, c. 323, § 2-611, eff. Oct. 1, 1980.
§40-2-612. Payment of benefits.
PAYMENT OF BENEFITS. Benefits shall be promptly paid on any claim in accordance with a determination or redetermination or the decision of a referee, the Board of Review or a reviewing court upon the issuance of such determination, redetermination or decision, regardless of the pendency of the period to file an appeal, or petition for judicial review that is provided with respect thereto in this section, as the case may be, or the pendency of any such filing, or petition, unless and until such determination, redetermination, or decision has been modified or reversed by a subsequent redetermination or decision, in which event benefits shall be paid or denied for weeks of unemployment thereafter in accordance with such modifying or reversing redetermination or decision. No injunction, supersedeas, stay or other writ or process suspending the payment of such benefits shall be issued by any court but if such determination, redetermination or decision is finally modified or reversed to deny benefits no employer's account shall remain charged with benefit wages pursuant to the erroneous determination, redetermination or decision and benefits shall not be paid for any weeks of unemployment involved in such modification or reversal that begin after such final decision.
Added by Laws 1980, c. 323, § 2-612, eff. Oct. 1, 1980.
§40-2-613. Benefit overpayments.
Benefit Overpayments.
An overpayment of unemployment benefits shall be classified in one of three ways with recovery and recoupment to be conducted as follows:
1. Fraud overpayment: in which an individual intentionally makes a false statement or representation or fails to disclose a material fact, and has received any sum as benefits to which the individual was not entitled. The individual shall be liable to repay this sum, plus interest at the rate of one percent (1%) per month on the unpaid balance of the overpayment, to the Oklahoma Employment Security Commission. The interest shall cease to accrue when the total accrued interest equals the amount of the overpayment. If an overpayment is modified, the interest shall cease to accrue when the total accrued interest equals the amount of the modified overpayment. The Commission shall deduct the principal sum from any future benefits payable to the individual;
2. Claimant error overpayment: in which an individual, by mistake of law or fact, makes a false statement or representation or fails to disclose a material fact and has received any sum as benefits to which the individual was not entitled. The individual shall be liable to repay this sum, plus interest at the rate of one percent (1%) per month on the unpaid balance of the overpayment, to the Commission. The interest shall cease to accrue when the total accrued interest equals the amount of the overpayment. If an overpayment is modified, the interest shall cease to accrue when the total accrued interest equals the amount of the modified overpayment. The Commission shall deduct the principal sum from any future benefits payable to the individual; or
3. Administrative overpayment - in which:
a. an individual has received any sum as benefits under this act due to an error by the Commission or an employer, or
b. an individual has received benefits and, under a redetermination or a reversal of a decision on appeal, the individual has been found to be not entitled to benefits.
The individual shall be liable to have this sum deducted from any future benefits payable to the individual with respect to the benefit year current at the time of the receipt and the next subsequent benefit year that begins within one (1) year after the expiration of the benefit year current at the time of the receipt. No interest shall accrue on administrative overpayments.
Added by Laws 1980, c. 323, § 2-613, eff. Oct. 1, 1980. Amended by Laws 1981, c. 259, § 12, emerg. eff. June 25, 1981; Laws 1986, c. 205, § 5, emerg. eff. June 6, 1986; Laws 1987, c. 10, § 2, emerg. eff. March 31, 1987; Laws 1992, c. 318, § 1, eff. July 1, 1992; Laws 2002, c. 452, § 13, eff. Nov. 1, 2002; Laws 2005, c. 182, § 5, eff. Nov. 1, 2005.
§40-2-614. Waiver of appeal time.
WAIVER OF APPEAL TIME.
All time periods provided for appeals pursuant to the provisions of Article 2 of the Employment Security Act of 1980 may be waived for good cause shown; provided, this waiver shall not apply to appeals to district court of decisions of the Board of Review.
Added by Laws 1983, c. 270, § 7, emerg. eff. June 23, 1983. Amended by Laws 1992, c. 318, § 2, eff. July 1, 1992; Laws 2003, c. 177, § 4, eff. Nov. 1, 2003.
§40-2-615. Waiver of interest.
Any interest, or any portion thereof, that accrues pursuant to the provisions of Section 2-613 of Title 40 of the Oklahoma Statutes, may be waived by the Oklahoma Employment Security Commission provided the failure of the claimant to remit payment at the time a determination of overpayment was made:
1. Is explained to the satisfaction of the Commission;
2. Resulted from a mistake by the claimant of either the law or the facts concerning the repayment of overpayment benefits; or
3. Was caused by insolvency of the claimant.
No waiver of interest shall be granted unless a request for waiver is filed with the Commission within a three-year period from the date the interest accrued. No waiver of interest shall be granted to a claimant if it is determined that the claimant received an overpayment of benefits through fraud.
Added by Laws 2002, c. 452, § 14, eff. Nov. 1, 2002.
§40-2-616. Notice of overpayment determination.
If the Oklahoma Employment Security Commission or its representative determines that an individual has been overpaid unemployment benefits pursuant to paragraph 1 or 2 of Section 2-613 of Title 40 of the Oklahoma Statutes, the individual shall be sent a notice of overpayment determination. If the individual disagrees with this determination, the individual may file an appeal of the determination with the Appeal Tribunal within twenty (20) days after the date of the mailing of the notice to the individual's last-known address or, if the notice is not mailed, within twenty (20) days after the date of the delivery of the notice. If the individual fails to appeal the determination within the time provided, then the determination will be deemed final and no further appeal shall be allowed.
Added by Laws 2002, c. 452, § 15, eff. Nov. 1, 2002.
§40-2-617. Warranty of levy and lien.
A. If the notice of overpayment determination issued pursuant to Section 15 of this act becomes final due to a lack of appeal or if the determination is affirmed on appeal, and if the amount due is not paid within ninety (90) days of the date that the determination becomes final, then the Oklahoma Employment Security Commission may issue a warrant of levy and lien under its official seal, which shall state the name and social security number of the debtor and list the amount of indebtedness with interest. The warrant of levy and lien shall be for all purposes the equivalent of a judgment of a court of record.
B. The Commission may file a copy of the warrant of levy and lien with the county clerk of the county or counties in which the individual has property and thereupon the county clerk shall index the warrant of levy and lien in the same manner as judgments using the name of the individual named in the warrant of levy and lien, indicating that it is due to an overpayment of unemployment insurance benefits, showing the amount due with interest, the date upon which the warrant of levy and lien was filed, and shall index the warrant of levy and lien against the real property described therein, if any is described. If the county clerk charges a fee for the filing of the warrant of levy and lien, the Commission may add the amount of the fee to the indebtedness owing by the individual named in the warrant of levy and lien.
C. The filing of the notice in the office of the county clerk of the county in which the individual resides shall constitute and be evidence and notice of the state's lien upon the title to any interest in any real or personal property of the individual named in the notice. The lien shall be in addition to any and all other liens existing in favor of the state to secure the payment of any unpaid indebtedness, interest, penalty, fees and costs, and the lien shall be paramount and superior to all other liens of whatsoever kind or character, attaching to any of the property subsequent to the date of the recording and shall be in addition to any other lien provided for in this act. This lien shall be permanent and continuing without any requirement for executions under Section 735 of Title 12 of the Oklahoma Statutes or any other similar statute. This lien shall continue on personal property of the individual until the amount of the indebtedness, interest, fees and costs are paid. This lien shall continue on real property until released by payment or for a maximum of ten (10) years after the date of its filing.
D. The Commission may file a copy of the notice with the court clerk in the county in which the individual is employed or resides, and it shall be filed in the same manner as a judgment of a court of record for the purpose of pursuing any post-judgment collection procedure that is deemed appropriate. The Commission may send the notice to the sheriff in a county in which the individual owns real or personal property for execution. Upon receiving the notice, the sheriff shall proceed to execute the notice in all respects and with like effect and in same manner prescribed by law in respect to executions against property upon judgment of the court of record; and the sheriff shall execute and deliver to the purchaser a bill of sale or deed, as the case may be. Any purchaser, other than the state, shall be entitled, upon application to the court having jurisdiction of the property, to have confirmation (the procedure for which shall be the same as is now provided for the confirmation of a sale under execution) of the sale prior to the issuance of a bill of sale or deed. The state shall be authorized to make bids at any such sale to the amount of indebtedness, interest, costs, and fees accrued. In the event the bid of the state is successful, the sheriff shall issue a proper muniment of title to the Commission, and the Commission shall hold the title for the use and benefit of the state. The state may sell any property obtained in this manner through the procedures available for the sale of excess property of the state. Any money received by the Commission through the sale of property in this manner shall be credited against the indebtedness of the individual. The sheriff shall be entitled to the same fee for executing the notice as the sheriff would be entitled to receive if executing an execution issued by the court clerk of the county upon a judgment of a court of record.
Added by Laws 2002, c. 452, § 16, eff. Nov. 1, 2002.
§40-2-618. Levy on income and monetary assets.
LEVY ON INCOME AND MONETARY ASSETS.
A. As used in this section, the following words have the following meanings:
1. "Bank" means any state bank or banking association, national bank or banking association, savings and loan company, credit union, or any other financial institution;
2. "Bank account" means any checking or savings account the debtor has with any bank;
3. "Debtor" means any person that is the subject of a warrant of levy and lien issued pursuant to Section 2-617 of this title;
4. "Earnings" means any form of payment to an individual including, but not limited to, salary, wages, commission, or other compensation; and
5. "Employer" means any type of business or organization that owes earnings to a debtor.
B. If any debtor shall fail to pay his or her indebtedness to the Oklahoma Employment Security Commission and after the debtor has been notified of the amount due and demand for payment has been made, it shall be lawful for the Commission to collect the amount owed by levy upon the debtor's employer or any bank account of the debtor.
C. To levy upon an employer of the debtor, the Commission must serve a Notice of Levy on the employer along with the warrant of levy and lien that sets out the amount owing on the benefit overpayment of the debtor, with interest. The levy will have the same priority, and be subject to the same exceptions, as a continuing earnings garnishment provided for in Section 1173.4 of Title 12 of the Oklahoma Statutes. The following procedures will apply to a Notice of Levy served on an employer:
1. The employer shall answer the Notice of Levy on a form provided by the Commission. The employer shall follow the procedure for answering a continuing earnings garnishment as set out in subsection F of Section 1173.4 of Title 12 of the Oklahoma Statutes; and
2. The Notice of Levy shall be a lien on the debtor's property in the same manner as provided for in subsection G of Section 1173.4 of Title 12 of the Oklahoma Statutes. The Notice of Levy shall also be subject to the procedures and time limits set out in subsections H, I, J and K of Section 1173.4 of Title 12 of the Oklahoma Statutes, except that when a document is required to be filed with the clerk of the court, the document will instead be filed with the Commission as directed on the forms provided.
D. To levy upon a debtor's bank account, the Commission must serve a Notice of Levy on the bank in which the debtor has an account, along with the warrant of levy and lien issued against the debtor. The following procedures will apply to a Notice of Levy served on a bank:
1. Upon receiving the Notice of Levy and the warrant of levy and lien issued against the debtor, the bank shall deliver all of the debtor's interest in the money in the debtor's bank account at the time of service of the levy, subject to the banker's lien or right of set off or any other priority claim of the bank, up to the amount of indebtedness indicated on the warrant of levy and lien plus accrued interest pursuant to Section 2-613 of this title and any fees for service of process, to the Commission office indicated in the Notice of Levy;
2. The delivery of this money shall occur within ten (10) days of the date of service of the Notice of Levy;
3. If there is no money in the debtor's bank account at the time the Notice of Levy is served, or if the bank account has been closed, an officer of the bank on which the Notice of Levy is served shall make a statement to that effect on the Notice of Levy. The statement shall be notarized and returned to the office of the Commission that is indicated in the Notice of Levy;
4. Any bank that fails or refuses to surrender money or rights to money in a bank account subject to levy, upon being served with a Notice of Levy and supporting warrant of levy and lien of the Commission, shall be liable to the Commission in a sum equal to the amount of money or rights to money not so surrendered, but not exceeding the amount of the debtor's indebtedness for the collection of which the levy has been made, together with accrued interest pursuant to Section 2-613 of this title, and the cost of service of the Notice of Levy. Any amount recovered in this manner shall be credited against the liability of the debtor for the benefit overpayment indebtedness, for which the levy was made; and
5. Any bank in possession of money or rights to money subject to levy, upon which a levy has been made, that surrenders the money or rights to money to the Commission shall be discharged from any obligation or liability to the debtor and any other person or entity with respect to such money or rights to money arising from the surrender or payment.
E. Service of the Notice of Levy and the warrant of levy and lien shall be made in the same manner as provided in Section 2004 of Title 12 of the Oklahoma Statutes for service of process in civil actions.
F. If a sheriff's department is enlisted to serve the Notice of Levy, that sheriff's department shall be entitled to a service fee of Fifty Dollars ($50.00) that is to be paid by the Commission and added to the debtor's indebtedness.
G. Claims for exemptions and any other matter relating to the levy shall be filed within ten (10) days of the date of service of the levy. The claim shall be filed with the Appeal Tribunal of the Oklahoma Employment Security Commission. Appeal from the Appeal Tribunal decision shall be governed by the appeal procedures set out in Part 6 of Article 2 of the Employment Security Act of 1980, and the Administrative Rules of the Oklahoma Employment Security Commission pertaining thereto.
Added by Laws 2002, c. 452, § 17, eff. Nov. 1, 2002. Amended by Laws 2003, c. 177, § 5, eff. Nov. 1, 2003.
§40-2-701. Definitions of terms applicable to extended benefits.
DEFINITIONS OF TERMS APPLICABLE TO EXTENDED BENEFITS. The words and phrases used in this Part shall, unless the context clearly requires otherwise, have the meanings prescribed in this part.
Added by Laws 1980, c. 323, § 2-701, eff. July 1, 1980.
§40-2-702. Applicability.
APPLICABILITY. The provisions of this part shall apply to the Extended Benefits Program.
Added by Laws 1980, c. 323, § 2-702, eff. July 1, 1980.
§40-2-703. Extended benefit period.
EXTENDED BENEFIT PERIOD. "Extended benefit period" means a period which shall:
(1) begin with the third week after the first week for which there is a state "on" indicator; and
(2) end with either of the following weeks, whichever occurs later:
(a) the third week after the first week for which there is a state "off" indicator, or
(b) the thirteenth consecutive week of such period.
No extended benefit period may begin by reason of a state "on" indicator before the fourteenth week following the end of a prior extended benefit period which was in effect with respect to this state.
Added by Laws 1980, c. 323, § 2-703, eff. July 1, 1980. Amended by Laws 1982, c. 304, § 11, operative Oct. 1, 1982.
§40-2-706. State "on" indicator.
STATE "ON" INDICATOR.
There is a "state 'on' indicator" for this state for a week if the Oklahoma Employment Security Commission determines, in accordance with the regulations of the Secretary of Labor of the United States, that for the period consisting of such week and the immediately preceding twelve (12) weeks, the rate of insured unemployment, not seasonally adjusted:
1. Equaled or exceeded one hundred twenty percent (120%) of the average of such rates for the corresponding thirteen-week period ending in each of the preceding two (2) calendar years, and equaled or exceeded five percent (5%); or
2. Equaled or exceeded six percent (6%).
Any optional or revised "state 'on' indicator" or indicators or optional waiver by a state of any such indicator or part of any such indicator provided for by Congress for any period of time shall be considered to be in effect in Oklahoma for such period of time.
Added by Laws 1980, c. 323, § 2-706, eff. July 1, 1980. Amended by Laws 1982, c. 304, § 12, operative Oct. 1, 1982; Laws 2002, c. 452, § 18, eff. Nov. 1, 2002.
§40-2-707. State "off" indicator.
STATE "OFF" INDICATOR.
There is a "state 'off' indicator" for this state for a week if the Commission determines, in accordance with the regulations of the Secretary of Labor of the United States, that for the period consisting of such week and the immediately preceding twelve (12) weeks, the rate of insured unemployment, not seasonally adjusted was either:
1. Less than six percent (6%) and was less than one hundred twenty percent (120%) of the average of such rates for the corresponding thirteen-week period ending in each of the preceding two (2) calendar years; or
2. Less than five percent (5%).
Any optional or revised "state 'off' indicator" or indicators or optional waiver by a state of any such indicator or part of any such indicator provided for by Congress for any period of time shall be considered to be in effect in Oklahoma for such period of time.
Added by Laws 1980, c. 323, § 2-707, eff. July 1, 1980. Amended by Laws 1982, c. 304, § 13, operative Oct. 1, 1982; Laws 2002, c. 452, § 19, eff. Nov. 1, 2002.
§40-2-708. Rate of insured unemployment.
RATE OF INSURED UNEMPLOYMENT. "Rate of insured unemployment", for purposes of Sections 2-706 and 2-707 of this title, means the percentage derived by dividing:
(1) the average weekly number of weeks claimed for weeks of unemployment for regular benefits, including interstate claims filed in this state with respect to the most recent thirteen-consecutive-week period, as determined by the Commission on the basis of its reports to the Secretary of Labor of the United States, by
(2) the average monthly employment covered under this act for the first four (4) of the most recent six (6) completed calendar quarters ending before the end of such thirteenweek period.
Added by Laws 1980, c. 323, § 2-708, eff. July 1, 1980. Amended by Laws 1982, c. 304, § 14, operative Oct. 1, 1982.
§40-2-709. Regular benefits.
REGULAR BENEFITS. "Regular benefits" mean benefits payable to an individual under this act, or under any other state law, including dependents' allowances and benefits payable to federal civilian employees and to ex-servicemen pursuant to 5 U.S.C. Chapter 85, other than extended benefits.
Added by Laws 1980, c. 323, § 2-709, eff. July 1, 1980.
§40-2-710. Extended benefits.
EXTENDED BENEFITS. "Extended benefits" mean benefits, including benefits payable to federal civilian employees and to ex-servicemen pursuant to 5 U.S.C. Chapter 85, payable to an individual under the provisions of this Part 7 for weeks of unemployment, as defined by this act, in his eligibility period.
Added by Laws 1980, c. 323, § 2-710, eff. July 1, 1980.
§40-2-711. Eligibility period.
ELIGIBILITY PERIOD. "Eligibility period" of an individual for extended benefits means the period consisting of the weeks in his benefit year as defined by this act, which begin in an extended benefit period and, if his benefit year ends within such extended benefit period, any weeks thereafter which begin in such extended benefit period.
Added by Laws 1980, c. 323, § 2-711, eff. July 1, 1980.
§40-2-712. Exhaustee.
EXHAUSTEE. A. "Exhaustee" means an individual who, with respect to any week of unemployment in his eligibility period:
(1) has received, prior to such week, all the regular benefits payable to him according to the monetary determination for his current benefit year that includes such week under this act, or of any other state law; or
(2) has received, prior to such week, all the regular benefits available to him in his current benefit year that includes such week under this act or of any other state law after a cancellation of some or all of his wage credits or the partial or total reduction of his right to regular compensation; or
(3) his benefit year having expired prior to such week, has insufficient wages or employment, or both, on the basis of which he could establish in any state a new benefit year that would include such week, or having established a new benefit year that includes such week, he is precluded from receiving regular benefits by reason of the provisions of Part 1 of Article 2 or the provision of any other state law that meets the requirements of Section 3304(a)(7) of the Internal Revenue Code of 1954; and
(4) has no right to unemployment benefits or allowances, as the case may be, under the following federal laws: The Railroad Unemployment Insurance Act, the Trade Expansion Act, and the Automotive Products Trade Act; and
(5) has not received and is not seeking for such week unemployment benefits under the law of Canada, but if he is seeking such benefits and the appropriate agency finally determines that he is not entitled to benefits under such law, he is an exhaustee.
B. For purposes of paragraphs (1) and (2) of subsection A, an individual shall be deemed to have received in his current benefit year all of the regular benefits payable to him according to the monetary determination or available to him, as the case may be, even though:
(1) as a result of a pending appeal with respect to wages or employment or both that were not included in the original monetary determination with respect to such benefit year, he may subsequently be determined to be entitled to more regular benefits; or
(2) having established a benefit year, no regular benefits are payable to him during such year because his wage credits were cancelled or his right to regular compensation was totally reduced as the result of the application of a disqualification.
Added by Laws 1980, c. 323, § 2-712, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 13, emerg. eff. June 25, 1981.
§40-2-713. State law.
STATE LAW. "State law" means the unemployment insurance law of any state, approved by the Secretary of Labor of the United States under Section 3304 of the Internal Revenue Code of 1954.
Added by Laws 1980, c. 323, § 2-713, eff. July 1, 1980.
§40-2-714. Extended benefits.
EXTENDED BENEFITS. Except when the result would be inconsistent with the other provisions of this section, as provided in the rules of the Commission, the provisions of this act which apply to claims for, or the payment of, regular benefits shall apply to claims for, and the payment of, extended benefits including, but not limited to, claim filing, claimant reporting and registration, information to claimants, notices to claimants of their weekly and total extended benefit amounts determinations, redeterminations, appeals and review, week for which benefits are paid, disqualifications and eligibility requirements, but excluding those provisions which apply to any waiting period, monetary qualifying or requalifying requirements and the computation of weekly and total amounts of regular benefits.
Added by Laws 1980, c. 323, § 2-714, eff. July 1, 1980. Amended by Laws 1993, c. 219, § 11, eff. Sept. 1, 1993.
§40-2-715. Eligibility for extended benefits.
ELIGIBILITY FOR EXTENDED BENEFITS.
A. An individual shall be eligible to receive extended benefits with respect to any week of unemployment in the eligibility period of the individual only if the Commission finds that with respect to such week:
1. The individual is an "exhaustee" as defined in Section 2712 of this title; and
2. Except as otherwise provided by this section, the individual has satisfied the requirements of the Employment Security Act of 1980, for the receipt of regular benefits that are applicable to individuals claiming extended benefits, including not being subject to a disqualification under the Employment Security Act of 1980, Section 1-101 et seq. of this title, for the receipt of benefits.
B. An individual shall not be eligible for extended benefits unless, in the base period with respect to which the individual exhausted all rights to regular benefits, the individual shall have been paid wages for insured work of not less than one and one-half (1 1/2) times the amount of wages during that quarter of the base period of the individual in which the wages were the highest.
C. Any payment of extended benefits under the Employment Security Act of 1980 shall not be made to any individual for any week of unemployment in his or her eligibility period during which the individual:
1. Fails to accept any offer of suitable work;
2. Fails to apply for any suitable work to which referred by the state employment service; or
3. Fails to actively engage in seeking suitable work.
D. Suitable work shall be defined as any work which is within such individual's capabilities, except that if the individual furnishes satisfactory evidence that the individual's prospects for obtaining work in his or her customary occupation within a reasonably short period are good, the determination of whether any work is suitable work with respect to such individual shall be made in accordance with the provisions of Section 2408 of this title with respect to regular benefit claimants.
1. Any work which is within the capabilities of such individual means that the individual has the physical and mental capacity to do the work and the background and experience which would enable the individual to perform the job.
2. Work for an extended benefit claimant shall not be considered suitable if the gross weekly pay of the job does not exceed the extended weekly benefit amount payable to the individual for a week of total unemployment plus the amount of any Supplemental Unemployment Benefits (SUB), as defined in Section 501(c)(17)(D) of the Internal Revenue Code of 1954, 26 U.S.C., Section 501, payable for such week and equal the higher of the federal minimum wage provided by Section 6(a)(1) of the Fair Labor Standards Act of 1938, 29 U.S.C., Section 206, without regard to any exemption or any applicable state or local minimum wage.
E. If any individual is ineligible for extended benefits for any week by reason of a failure described in subsection B of this section, such individual shall be ineligible to receive extended benefits for the week in which such failure occurred and until the individual has been employed during at least four (4) different weeks which begin after such failure and has earned wages equal to or in excess of four (4) times his weekly benefit amount.
F. 1. Extended benefits shall not be denied to any individual for any week by reason of a failure to accept an offer of, or apply for, suitable work if the position was not offered to such individual in writing or was not listed with the state employment service.
2. Extended benefits shall not be denied to any individual for any week by reason of a failure to accept an offer of or apply for suitable work if such failure would not result in a denial of benefits under the provisions of Sections 2408, 2409, 2-417 and 2-418 of this title to the extent that such provisions are not inconsistent with the provisions of this section.
3. Extended benefits shall not be denied to any individual for any week by reason of a failure to accept an offer of or apply for suitable work if the work failed to meet any of the requirements of Section 2409 of this title.
G. An individual shall be treated as actively engaged in seeking work during any week if such individual has engaged in a systematic and sustained effort to obtain work during such week, and such individual provides tangible evidence to the state employment service that he has engaged in such an effort during such week.
H. An individual filing an interstate claim shall not be eligible for extended benefits after the first two (2) weeks of extended benefits that are payable if no extended benefit period is in effect for such week in the state where the claim is filed.
I. The state employment service shall refer any claimant entitled to extended benefits to any suitable work which meets the criteria prescribed in this section.
Added by Laws 1980, c. 323, § 2-715, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 14, emerg. eff. June 25, 1981; Laws 1982, c. 304, § 15, operative Oct. 1, 1982; Laws 1984, c. 252, § 4, emerg. eff. May 29, 1984; Laws 1993, c. 88, § 1, emerg. eff. April 18, 1993; Laws 1994, c. 166, § 3, eff. Sept. 1, 1994; Laws 1995, c. 340, § 11, eff. July 1, 1995; Laws 2002, c. 452, § 20, eff. Nov. 1, 2002.
NOTE: Laws 1994, c. 73, § 1 repealed by Laws 1994, c. 166, § 4, eff. Sept. 1, 1994.
§40-2-716. Weekly extended benefit amount.
WEEKLY EXTENDED BENEFIT AMOUNT. (1) The weekly extended benefit amount payable to an individual for a week of total unemployment in his eligibility period shall be an amount equal to the weekly benefit amount payable to him for a week of total unemployment during his current benefit year, or if he has no current benefit year, his most recent benefit year. If the individual had more than one (1) weekly amount of regular benefits for total unemployment during such benefit year, the weekly amount of extended benefits for total unemployment shall be the average of such weekly benefit amounts.
(2) The weekly benefit amount of extended benefits payable for a week of less than total unemployment shall be based on the weekly benefit amount determined pursuant to subsection (1) of this section. Provided, that for any week during a period in which federal payments to states under Section 204 of the Federal-State Extended Unemployment Compensation Act of 1970 are reduced under an order issued under Section 252 of the Balanced Budget and Emergency Deficit Control Act of 1985, the weekly extended benefit amount payable to an individual for a week of total unemployment in his eligibility period shall be reduced by a percentage equivalent to the percentage of the reduction in the federal payment. Such reduced weekly extended benefit amount, if not a full dollar amount, shall be rounded to the nearest lower full dollar amount.
Added by Laws 1980, c. 323, § 2-716, eff. July 1, 1980. Amended by Laws 1986, c. 205, § 6, emerg. eff. June 6, 1986.
§40-2-717. Total amount of extended benefits payable.
TOTAL AMOUNT OF EXTENDED BENEFITS PAYABLE. The total extended benefit amount payable to any eligible individual with respect to his applicable benefit year shall be the least of the following amounts:
(1) fifty percent (50%) of the total amount of regular benefits which were payable to him under this act, during his applicable benefit year;
(2) thirteen (13) times his average weekly benefit amount as determined in subsection (1) of this section which was payable to him under this act, for a week of total unemployment during such benefit year;
(3) thirty-nine (39) times his average weekly benefit amount as determined in subsection (1) of Section 2-716 payable to him under this act, for a week of total unemployment during such benefit year, reduced by the regular benefits paid, or deemed paid, to him during such benefit year.
(4) If an individual is entitled to more extended benefits as a result of an appeal which afforded him more regular benefits, an appropriate change shall be made in the individual's total extended benefit amount.
(5) If an individual who has received extended benefits for a week or weeks of unemployment is determined to be entitled to more regular benefits with respect to such week or weeks as the result of an appeal, the extended benefits paid to him shall be treated as if they were regular benefits up to the greater amount of regular benefits to which he has been determined to be entitled. If the individual is entitled to more extended benefits as a result of being entitled to more regular benefits, the total extended benefit amount payable to him shall be amended accordingly.
Added by Laws 1980, c. 323, § 2-717, eff. July 1, 1980.
§40-2-718. Public announcement of extended benefit period.
PUBLIC ANNOUNCEMENT OF EXTENDED BENEFIT PERIOD. Whenever an extended benefit period is to become effective in this state, as a result of a state "on" indicator, or an extended benefit period is to be terminated in this state as a result of state "off" indicators, the Commission shall make an appropriate public announcement.
Added by Laws 1980, c. 323, § 2-718, eff. July 1, 1980. Amended by Laws 1982, c. 304, § 16, operative Oct. 1, 1982.
§40-2-719. Commission to make computations.
COMMISSION TO MAKE COMPUTATIONS. Computations required by the provisions of this part shall be made by the Commission, in accordance with regulations prescribed by the Secretary of Labor of the United States.
Added by Laws 1980, c. 323, § 2-719, eff. July 1, 1980.
§40-2-720. Commission to ensure compliance.
COMMISSION TO ENSURE COMPLIANCE. In the administration of the provisions of this Part which are enacted to conform with the requirements of the Federal-State Extended Unemployment Compensation Act of 1970, and the Unemployment Compensation Amendments of 1976, the Commission shall take such action as may be necessary to ensure that the provisions are so interpreted and applied so as to meet the requirements of such federal act as interpreted by the Department of Labor of the United States, and to secure to this state the full reimbursement of the federal share of extended benefits paid under this act that are reimbursable under the federal act.
Added by Laws 1980, c. 323, § 2-720, eff. July 1, 1980.
§40-2-721. Employers not liable for reimbursed payments.
EMPLOYERS NOT LIABLE FOR REIMBURSED PAYMENTS. Notwithstanding any other provisions of this act no employer shall be liable for payments in lieu of contributions with respect to extended benefit payments which are wholly reimbursed to the state by the federal government.
Added by Laws 1980, c. 323, § 2-721, eff. July 1, 1980.
§40-2-722. Reimbursement deposited in fund.
REIMBURSEMENT DEPOSITED IN FUND. Reimbursement of the federal share shall be deposited in the Unemployment Compensation Fund created by this act.
Added by Laws 1980, c. 323, § 2-722, eff. July 1, 1980.
§40-2-723. Overpayments, restitution and offset.
OVERPAYMENTS, RESTITUTION AND OFFSET. The provisions of this act applicable to recovery of overpayments, including restitution and offset, shall apply to overpayments of extended benefits. If there is recovery of extended benefits, that proportion of the amount restored or offset which represents the federal share of the original payments shall be restored to the appropriate federal account.
Added by Laws 1980, c. 323, § 2-723, eff. July 1, 1980.
§40-2-724. Limitation on amount of combined unemployment insurance and Trade Act benefits received.
LIMITATION ON AMOUNT OF COMBINED UNEMPLOYMENT INSURANCE AND TRADE ACT BENEFITS RECEIVED. If the benefit year of any individual ends within an extended benefit period, the remaining balance of extended benefits that the individual would be entitled to receive in that extended benefit period, with respect to weeks of unemployment beginning after the end of the benefit year, shall be reduced, but not below zero, by the product of the number of weeks for which the individual received any amounts as trade readjustment allowances within that benefit year, multiplied by the weekly benefit amount for extended benefits of the individual.
Added by Laws 1982, c. 304, § 17, operative Oct. 1, 1982.
§40-2-801. Child support obligations.
CHILD SUPPORT OBLIGATIONS. A. Beginning October 1, 1982, any individual filing a new claim for unemployment compensation shall, at the time of filing such claim, disclose whether or not the individual owes child support obligations. If any such individual discloses that he or she owes child support obligations, and is determined to be eligible for unemployment compensation, the Commission shall notify the state or local child support enforcement agency enforcing such obligation that the individual has been determined to be eligible for unemployment compensation.
B. The Commission shall deduct and withhold from any unemployment compensation payable to an individual that owes child support obligations:
(1) the amount specified by the individual to the Commission to be deducted and withheld under this subsection, if neither paragraphs (2) or (3) of this subsection are applicable, or
(2) the amount, if any, determined pursuant to an agreement submitted to the Commission under 42 U.S.C., Section 654(19)(B)(i) by the state or local child support enforcement agency, unless paragraph (3) of this subsection is applicable, or
(3) any amount otherwise required to be so deducted and withheld from such unemployment compensation pursuant to legal process, which shall mean any writ, order, summons or other similar process in the nature of garnishment, which:
(a) is issued by:
(i) a court of competent jurisdiction within any state, territory or possession of the United States,
(ii) a court of competent jurisdiction in any foreign country with which the United States has entered into an agreement which requires the United States to honor such process, or
(iii) an authorized official pursuant to an order of such a court of competent jurisdiction or pursuant to state or local law, and
(b) is directed to, and the purpose of which is to compel, a governmental entity, which holds monies which are otherwise payable to an individual, to make a payment from such monies to another party in order to satisfy a legal obligation of such individual to provide child support.
C. Any amount deducted and withheld under subsection B of this section shall be paid by the Commission to the appropriate state or local child support enforcement agency.
D. Any amount deducted and withheld under subsection B of this section shall for all purposes be treated as if it were paid to the individual as unemployment compensation and paid by such individual to the state or local child support enforcement agency in satisfaction of the individual's child support obligations.
E. For purposes of subsections A through D of this section, the term "unemployment compensation" means any compensation payable under the Employment Security Act of 1980, Section 1-101 of this title, including amounts payable by the Commission pursuant to an agreement under any federal law providing for compensation, assistance or allowances with respect to unemployment.
F. This section applies only if appropriate arrangements have been made for reimbursement by the state or local child support enforcement agency for the administrative costs, as determined by the Commission, incurred by the Commission under this section which are attributable to child support obligations being enforced by the state or local child support enforcement agency.
G. For purposes of this section:
(1) "Child support obligations" means only obligations which are being enforced pursuant to a plan described in 42 U.S.C., Section 654, which has been approved by the Secretary of Health and Human Services under 42 U.S.C., Section 651 et seq.
(2) "State or local child support enforcement agency" means any agency of a state or a political subdivision thereof, operating pursuant to a plan described in 42 U.S.C., Section 654, which has been approved by the Secretary of Health and Human Services under 42 U.S.C., Section 651 et seq.
(3) Deductions from unemployment insurance authorized by subsection B of this section in satisfaction of child support obligations are only those obligations defined in paragraph (1) of subsection G of this section, and the recipient of said deductions shall be defined as only a state or local child support enforcement agency operating pursuant to an approved plan described in 42 U.S.C., Section 654 and referenced in paragraph (2) of subsection G of this section.
Added by Laws 1982, c. 304, § 18, operative Oct. 1, 1982. Amended by Laws 1990, c. 235, § 2, eff. Sept. 1, 1990.
§40-2-802. Reports by employers to Employment Security Commission - New hire registry.
REPORTS BY EMPLOYERS TO EMPLOYMENT SECURITY COMMISSION - NEW HIRE REGISTRY.
A. Employers doing business in the State of Oklahoma shall report to the Oklahoma Employment Security Commission, the hiring or employment of any person who resides or works in this state to whom the employer anticipates paying earnings.
B. Such report shall contain the employee's name, address, social security number, date of employment, state of employment, along with the employer's name, address, and federal identification number.
C. The report must be made within twenty (20) days of hiring, or twice monthly, not less than twelve (12) nor more than sixteen (16) days apart if reported electronically or magnetically. The report may be made by mailing a copy of the employee's W-4 form, by submitting a fax transmission of the employee's W-4 form, by submitting electronic media in a format that can be used by the Commission, or by any other means authorized by the Commission.
D. The Child Support Enforcement Division shall be the official New Hire Registry for the State of Oklahoma and will obtain the new hire information from the Oklahoma Employment Security Commission.
E. The Child Support Enforcement Division shall enter into agreements with state agencies administering unemployment, employment services, Workforce Investment Act programs, workers' compensation, public assistance, Medicaid, food stamps, vocational rehabilitation, and other programs specified by federal law or regulation, to provide such information upon request.
F. Used in this section:
1. "Employee" means an individual who is an employee as defined by the Internal Revenue Code of 1986, 26 U.S.C., Section 3401 et seq. "Employee" does not mean an employee of a federal or state agency performing intelligence or counterintelligence functions if the head of such agency has determined that reporting with respect to that employee could endanger the safety of the employee or compromise an ongoing investigation or intelligence mission;
2. "Employer" means an individual or other entity who is an employer as defined by the Internal Revenue Code of 1986, 26 U.S.C., Section 3401(d) and includes any governmental entity and any labor organization; and
3. "Labor organization" means an entity as defined by the National Labor Relations Act, 29 U.S.C., Section 152(5) including, but not limited to, any entity known as a "hiring hall" which is used by the organization and an employer to carry out requirements described in Section 8(f)(3) of the National Labor Relations Act, 29 U.S.C., Section 158(f)(3), of an agreement between the organization and the employer.
Added by Laws 1994, c. 356, § 34, eff. Sept. 1, 1994. Amended by Laws 1997, c. 402, § 8, eff. July 1, 1997; Laws 2001, c. 329, § 1, emerg. eff. June 1, 2001; Laws 2002, c. 452, § 21, eff. Nov. 1, 2002.
§40-2-803. Food Stamps Overissuances.
FOOD STAMPS OVERISSUANCES.
A. An individual filing a new claim for unemployment compensation shall, at the time of filing the claim, disclose whether or not he or she owes an uncollected overissuance of food stamp coupons, as defined in 7 U.S.C., Section 2022(c)(1). The Oklahoma Employment Security Commission shall notify the state food stamp agency enforcing such obligations of any individual who discloses that he or she owes food stamp overissuances and who is determined to be eligible for unemployment compensation.
B. The Commission shall deduct and withhold from any unemployment compensation payable to an individual who owes an uncollected overissuance:
1. The amount specified by the individual to the Commission to be deducted and withheld under this section;
2. The amount, if any, determined pursuant to an agreement submitted to the state food stamp agency under 7 U.S.C., Section 2022(c)(3)(A); or
3. Any amount otherwise required to be deducted and withheld from unemployment compensation pursuant to 7 U.S.C., Section 2022(c)(3)(B).
C. Any amount deducted and withheld under this section shall be paid by the Commission to the appropriate state food stamp agency.
D. Any amount deducted and withheld under subsection B of this section shall for all purposes be treated as if it were paid to the individual as unemployment compensation and paid by the individual to the state food stamp agency as repayment of the individual's uncollected overissuance.
E. For purposes of this section, the term "unemployment compensation" means any compensation payable under this act including amounts payable by the Commission pursuant to an agreement under any federal law providing for compensation, assistance, or allowances with respect to unemployment.
F. This section applies only if arrangements have been made for reimbursement by the state food stamp agency for the administrative costs incurred by the Commission under this section which are attributable to the repayment of uncollected overissuances to the state food stamp agency.
Added by Laws 1997, c. 30, § 10, eff. July 1, 1997.
§40-3-101. Applicability.
APPLICABILITY. (1) The provisions of this Article 3 apply to the payment of contributions by employers.
(2) The provisions of this Part 1 apply to employers other than employers who are subject to Part 7, or employers who have elected to reimburse under Part 8 of this Article.
Added by Laws 1980, c. 323, § 3-101, eff. July 1, 1980.
§40-3-102. Contributions.
CONTRIBUTIONS.
A. Contributions shall accrue and become payable by each employer for each calendar year in which the employer is subject to this act, with respect to wages for employment. Such contributions shall become due and be paid by each employer to the Commission for the Fund in accordance with such rules as the Commission may prescribe, and shall not be deducted, in whole or in part, from the wages of individuals in such employer's employ.
B. In the payment of any contributions, a fractional part of a cent shall be disregarded unless it amounts to one-half cent ($0.005) or more, in which case it shall be increased to one cent ($0.01).
C. Each employer shall be notified of its contribution rate for the calendar year before March 31 of such year. Such rate shall become conclusive and binding upon the employer unless within twenty (20) days after the mailing of the notice of the contribution rate, to the employer's last-known address, the employer files a written request for a review and redetermination setting forth the employer's reasons therefor. The Commission shall provide for such review and issue a determination to the employer.
D. Within fourteen (14) days after the date of mailing of the notice of the determination, the employer may file with the Commission at the address prescribed in the notice the employer's specific written objections to the contribution rate so determined. The matter will be heard upon those specific written objections by a representative appointed by the Commission. The decision thereon shall be made in writing and notice thereof mailed to the employer. The employer may appeal therefrom to the district court by filing a petition for review with the clerk of that court within thirty (30) days after the date of mailing stated upon that notice of decision.
Added by Laws 1980, c. 323, § 3-102, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 15, emerg. eff. June 25, 1981; Laws 1993, c. 219, § 12, eff. Sept. 1, 1993; Laws 1997, c. 30, § 12, eff. July 1, 1997.
§40-3-103. Computation - Percentage of wages payable.
COMPUTATION - PERCENTAGE OF WAGES PAYABLE. Beginning January 1, 1996, each employer, unless otherwise prescribed in Sections 3-104, 3-111, 3-112, 3-701 or 3-801 of this title, shall pay contributions equal to a percent of taxable wages paid by the employer with respect to employment which shall be the greater of one percent (1%) or the average contribution rate paid by all employers during the second year preceding the current calendar year. The average contribution rate shall be calculated by dividing annual net contributions received by total annual taxable wages.
Added by Laws 1980, c. 323, § 3-103, eff. July 1, 1980. Amended by Laws 1982, c. 304, § 19, operative Oct. 1, 1982; Laws 1983, c. 270, § 8, emerg. eff. June 23, 1983; Laws 1995, c. 340, § 12, eff. Jan. 1, 1996.
§40-3-104. Contributions rate for employers with three years' compensation experience.
CONTRIBUTIONS RATE FOR EMPLOYERS WITH THREE YEARS' COMPENSATION EXPERIENCE. For each calendar year commencing after December 31, 1941, the contribution rate of each employer who has had three (3) years of compensation experience shall be determined by the Fund's maximum liability for benefits to his employees who have been paid benefits, modified by the state experience as to the average duration of benefit payments, as provided in this part.
Added by Laws 1980, c. 323, § 3-104, eff. July 1, 1980.
§40-3-105. Benefit wages - Year charged.
BENEFIT WAGES - YEAR CHARGED. When in any benefit year a claimant is paid benefits for his or her fifth compensable week of unemployment or is paid benefits as defined in paragraph (3) of Section 4-702 of this title, his or her taxable wages during his or her base period shall be treated, for the purpose of this part, as though they had been paid in the calendar year in which such benefits are paid.
Added by Laws 1980, c. 323, § 3-105, eff. July 1, 1980. Amended by Laws 1983, c. 270, § 9, emerg. eff. June 23, 1983; Laws 1995, c. 340, § 13, eff. Jan. 1, 1996.
§40-3-106. Benefit wages charged and relief therefrom.
BENEFIT WAGES CHARGED AND RELIEF THEREFROM.
A. The Oklahoma Employment Security Commission shall give notice to each base period employer of a claimant promptly after the claimant is paid his or her fifth week of benefits by the Commission or promptly after the Commission receives notice of the amounts paid as benefits by another state under a reciprocal arrangement. Notice shall be deemed given under this subsection when the Commission deposits the same with the United States Postal Service addressed to the employer at an address designated by the employer to receive such notice or at the employer's last-known address. Notice shall be presumed prima facie to have been given to the employer to whom addressed on the date stated in the written notice. This notice shall give the name and Social Security Number of the claimant, the date the claim was filed, and the amount of benefit wages charged to the employer in each quarter of the base period.
B. Within fourteen (14) days from the date stated upon the notice provided for in subsection A of this section, the employer may file with the Commission written objections to being charged with such benefit wages upon one or more of the grounds for objection set forth in subsection G of this section. The employer's written objection must set forth specifically:
1. The date on which the employment was terminated;
2. Full particulars as to the circumstances of the termination including the reason given by the individual for voluntarily leaving the employment, or the nature of the misconduct for which discharged, as the case may be;
3. Full particulars as to the regular scheduled part-time or full-time employment of the employee including the starting date, and ending date if any, of the continuous period of such part-time or full-time employment; and
4. Such other information as called for by the notice.
C. Upon receipt of the employer's written objections, the Commission shall make a determination as to whether or not the employer is entitled to be relieved from the charging of benefit wages. The Commission shall promptly notify the employer of that determination. Provided further, the fourteen-day time period for filing written objections with the Commission as provided for in subsection B of this section may be waived for good cause shown.
D. Within twenty (20) days after the mailing of the determination provided for in subsection C of this section, the employer may file with the Commission or its representative a written protest to the determination and request an oral hearing de novo to present evidence in support of its protest. The Commission or its representative shall, by written notice, advise the employer of the date of the hearing, which shall not be less than ten (10) days from the date of mailing of the written notice. At the discretion of the Commission, this hearing shall be conducted by the Commission or its representative appointed by the Commission for this purpose. Pursuant to the hearing, the Commission or its representative shall, as soon as practicable, make a written order setting forth its findings of fact and conclusions of law, and shall send it to the employer.
E. If any employer fails to file a written protest within the period of twenty (20) days, as provided by subsection D of this section, then the determination shall be final, and no appeal shall thereafter be allowed.
F. The employer or the Commission may appeal the order of the Commission or its representative to the district court by filing a petition for review with the clerk of that court within thirty (30) days after the date the order was mailed to all parties. The mailing date shall be specifically stated in the order.
G. The benefit wages charged to an employer for a given calendar year shall be the total of the benefit wages stated in the notices given to the employer by the Commission. Provided, that an employer shall be relieved of a benefit wage charge if the employer proves to the satisfaction of the Commission that the benefit wage charge includes wages paid by the employer to any employee or former employee, who:
1. Left employment with that employer, or with his or her last employer, voluntarily without good cause connected to the work;
2. Was discharged from such employment for misconduct connected with his or her work;
3. Was a regular scheduled employee of that employer prior to the week the employee separated from other employment, and continued to work for said employer through the fifth compensable week of unemployment in his or her established benefit year;
4. Was separated from his or her employment as a direct result of a major natural disaster, declared as such by the President pursuant to the Disaster Relief Act of 1974, P.L. 93-288, and such employee would have been entitled to disaster unemployment assistance if he or she had not received unemployment insurance benefits;
5. Was separated from employment with that employer due to a medically verifiable illness or medical condition of the employee or the minor child of the employee;
6. Was discharged by an employer for unsatisfactory performance during an initial employment probationary period. As used in this paragraph, "probationary period" means a period of time set forth in an established probationary plan which applies to all employees or a specific group of employees and does not exceed ninety (90) calendar days from the first day a new employee begins work. The employee must be informed of the probationary period within the first seven (7) work days. There must be conclusive evidence to establish that the individual was separated due to unsatisfactory work performance and not separated because of lack of work due to temporary, seasonal, casual, or other similar employment not of regular, permanent, and year-round nature;
7. Was separated from employment because the spouse of the employee was transferred or obtained employment in another city or state that required the family of the employee to move, and the employee quit current employment to move with the spouse; or
8. Left employment with that employer as part of a plan to escape domestic violence or abuse.
9. Left employment to attend training approved under the Trade Act of 1974 and is allowed unemployment benefits pursuant to Section 2-416 of this title.
H. If an employer recalls a laid-off or separated employee and said employee continues to be employed or said employee voluntarily terminates employment or is discharged for misconduct within the benefit year, the employer shall be entitled to have the benefit wage charged against the employer's experience rating for said employee reduced by the ratio of the number of weeks of remaining eligibility of said employee to the total number of weeks of entitlement.
I. An employer shall not be charged with benefit wages of a laid-off employee if the employer lists as an objection in a statement filed in accordance with subsection B of this section that said employee collecting benefits was hired to replace a United States serviceman or servicewoman called into active duty and laid-off upon the return to work by that serviceman or servicewoman. The Unemployment Compensation Fund shall be charged with the benefit wages of the laid-off employee.
Added by Laws 1980, c. 323, § 3-106, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 16, emerg. eff. June 25, 1981; Laws 1982, c. 150, § 1, emerg. eff. April 12, 1982; Laws 1983, c. 270, § 10, emerg. eff. June 23, 1983; Laws 1990, c. 333, § 5, emerg. eff. May 31, 1990; Laws 1991, c. 120, § 1, emerg. eff. April 29, 1991; Laws 1991, c. 254, § 15, eff. July 1, 1991; Laws 1992, c. 318, § 3, eff. July 1, 1992; Laws 1995, c. 340, § 14, eff. Jan. 1, 1996; Laws 1997, c. 30, § 13, eff. July 1, 1997; Laws 1998, c. 161, § 10, eff. July 1, 1998; Laws 2002, c. 452, § 22, eff. Nov. 1, 2002; Laws 2003, c. 177, § 6, eff. Nov. 1, 2003; Laws 2004, c. 102, § 6, eff. Nov. 1, 2004; Laws 2005, c. 182, § 6, eff. Nov. 1, 2005.
§40-3-106.1. Relief from benefit wages charged──Addendum.
RELIEF FROM BENEFIT WAGES CHARGED - ADDENDUM.
The benefit wages charged to an employer for a given calendar year shall be the total of the benefit wages stated in the notices given to the employer by the Commission. Provided, that on and after April 19, 1995, an employer's benefit wages shall not include wages paid by the employer to any employee who was separated from his or her employment as a direct result of a natural disaster, fire, flood, or explosion that causes employees to be separated from one employer's employment. The Commission shall adopt emergency rules for immediate implementation of this section and subsequently adopt permanent rules for review by the 1996 Legislature.
Added by Laws 1995, c. 340, § 15, emerg. eff. June 9, 1995.
§40-3-107. Benefit wage ratio.
BENEFIT WAGE RATIO. The benefit wage ratio of each employer shall be a percentage equal to the total of his benefit wages for the most recent three (3) consecutive completed calendar years divided by his total taxable payroll for the same three (3) years on which contributions have been paid to the Commission on or before January 31 of the calendar year with respect to which his benefit wage ratio is determined.
Added by Laws 1980, c. 323, § 3-107, eff. July 1, 1980.
§40-3-108. State experience factor.
STATE EXPERIENCE FACTOR. The total benefits paid from the Fund for the most recent three (3) consecutive completed calendar years, less all amounts credited to the Fund other than employers' contributions, interest, penalties, fees and interest earned on the Fund, divided by the statewide total of benefit wages of all employers for the same three (3) calendar years, after adjustments to the nearest multiple of one percent (1%) shall be termed the "state experience factor." The state experience factor for any year shall be determined prior to the due date of the first contribution payment on wages for employment in that year.
Added by Laws 1980, c. 323, § 3-108, eff. July 1, 1980. Amended by Laws 1993, c. 219, § 13, eff. Sept. 1, 1993.
§40-3-109. Experience rate.
EXPERIENCE RATE. The contribution rate for each employer for each calendar quarter after December 31, 1983, to be applied to his current payroll shall be in accordance with the following table based upon the state experience factor and his benefit wage ratio:
When the State
Experience
Factor
Is: If the Employer's Benefit Wage Ratio Does Not Exceed:
1% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
2 5 10 15 20 25 30 35 40 45 50
3 3.3 6.6 10 13.3 16.5 20 23.3 26.6 30 33.3
4 2.5 5 7.5 10 12.5 15 17.5 20 22.5 25
5 2 4 6 8 10 12 14 16 18 20
6 1.5 3.3 5 6.6 8.3 10 11.6 13.3 15 16.6
7 1.4 2.8 4.2 5.7 7.1 8.5 10 11.4 12.8 14.2
8 1.2 2.5 3.7 5 6.2 7.5 8.7 10 11.2 12.5
9 1.1 2.2 3.3 4.4 5.5 6.6 7.7 8.8 10 11.1
10 1 2 3 4 5 6 7 8 9 10
11 0.9 1.8 2.7 3.6 4.5 5.4 6.3 7.2 8.1 9
12 0.8 1.6 2.5 3.3 4.1 5 5.8 6.6 7.5 8.3
13 0.7 1.5 2.3 3 3.8 4.6 5.3 6.1 6.9 7.6
14 0.7 1.4 2.1 2.8 3.5 4.2 5 5.7 6.4 7.1
15 0.6 1.3 2 2.6 3.3 4 4.6 5.3 6 6.6
16 0.6 1.2 1.8 2.5 3.1 3.7 4.3 5 5.6 6.2
17 0.5 1.1 1.7 2.3 2.9 3.5 4.1 4.7 5.2 5.8
18 0.5 1.1 1.6 2.2 2.7 3.3 3.8 4.4 5 5.5
19 0.5 1 1.5 2.1 2.6 3.1 3.6 4.2 4.7 5.2
20 0.5 1 1.5 2 2.5 3 3.5 4 4.5 5
21 0.4 0.9 1.4 1.9 2.3 2.8 3.3 3.8 4.2 4.7
22 0.4 0.9 1.3 1.8 2.2 2.7 3.1 3.6 4 4.5
23 0.4 0.8 1.3 1.7 2.1 2.6 3 3.4 3.9 4.3
24 0.4 0.8 1.2 1.6 2 2.5 2.9 3.3 3.7 4.1
25 0.4 0.8 1.2 1.6 2 2.4 2.8 3.2 3.6 4
26 0.3 0.7 1.1 1.5 1.9 2.3 2.6 3 3.4 3.8
27 0.3 0.7 1.1 1.4 1.8 2.2 2.5 2.9 3.3 3.7
28 0.3 0.7 1 1.4 1.7 2.1 2.5 2.8 3.2 3.5
29 0.3 0.6 1 1.3 1.7 2 2.4 2.7 3.1 3.4
30 0.3 0.6 1 1.3 1.6 2 2.3 2.6 3 3.3
31 0.3 0.6 0.9 1.2 1.6 1.9 2.2 2.5 2.9 3.2
32 0.3 0.6 0.9 1.2 1.5 1.8 2.1 2.5 2.8 3.1
33 0.3 0.6 0.9 1.2 1.5 1.8 2.1 2.4 2.7 3
34 0.2 0.5 0.8 1.1 1.4 1.7 2 2.3 2.6 2.9
35 0.2 0.5 0.8 1.1 1.4 1.7 2 2.2 2.5 2.8
36 0.2 0.5 0.8 1.1 1.3 1.6 1.9 2.2 2.5 2.7
37 0.2 0.5 0.8 1 1.3 1.6 1.8 2.1 2.4 2.7
38 0.2 0.5 0.7 1 1.3 1.5 1.8 2.1 2.3 2.6
39 0.2 0.5 0.7 1 1.2 1.5 1.7 2 2.3 2.5
40 0.2 0.5 0.7 1 1.2 1.5 1.7 2 2.2 2.5
41 0.2 0.4 0.7 0.9 1.2 1.4 1.7 1.9 2.1 2.4
42 0.2 0.4 0.7 0.9 1.1 1.4 1.6 1.9 2.1 2.3
43 0.2 0.4 0.6 0.9 1.1 1.3 1.6 1.8 2 2.3
44 0.2 0.4 0.6 0.9 1.1 1.3 1.5 1.8 2 2.2
45 0.2 0.4 0.6 0.8 1.1 1.3 1.5 1.7 2 2.2
46 0.2 0.4 0.6 0.8 1 1.3 1.5 1.7 1.9 2.1
47 0.2 0.4 0.6 0.8 1 1.2 1.4 1.7 1.9 2.1
48 0.2 0.4 0.6 0.8 1 1.2 1.4 1.6 1.8 2
49 0.2 0.4 0.6 0.8 1 1.2 1.4 1.6 1.8 2
50 0.2 0.4 0.6 0.8 1 1.2 1.4 1.6 1.8 2
The Employer's Contribution Rate Shall Be:
0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9 1.0
When the State
Experience
Factor
Is: If the Employer's Benefit Wage Ratio Does Not Exceed:
1% 110% 120% 130% 140% 150% 160% 170% 180% 190% 200%
2 55 60 65 70 75 80 85 90 95 100
3 36.6 40 43.3 46.6 50 53.3 56.6 60 63.3 66.6
4 27.5 30 32.5 35 37.5 40 42.5 45 47.5 50
5 22 24 26 28 30 32 34 36 38 40
6 18.3 20 21.6 23.3 25 26.6 28.3 30 31.6 33.3
7 15.7 17.1 18.5 20 21.4 22.8 24.2 25.7 27.1 28.5
8 13.7 15 16.2 17.5 18.7 20 21.2 22.5 23.7 25
9 12.2 13.3 14.4 15.5 16.6 17.7 18.8 20 21.1 22.2
10 11 12 13 14 15 16 17 18 19 20
11 10 10.9 11.8 12.7 13.6 14.5 15.4 16.3 17.2 18.1
12 9.1 10 10.8 11.6 12.5 13.3 14.1 15 15.8 16.6
13 8.4 9.2 10 10.7 11.5 12.3 13 13.8 14.6 15.3
14 7.8 8.5 9.2 10 10.7 11.4 12.1 12.8 13.5 14.2
15 7.3 8 8.6 9.3 10 10.6 11.3 12 12.6 13.3
16 6.8 7.5 8.1 8.7 9.3 10 10.6 11.2 11.8 12.5
17 6.4 7 7.6 8.2 8.8 9.4 10 10.5 11.1 11.7
18 6.1 6.6 7.2 7.7 8.3 8.8 9.4 10 10.5 11.1
19 5.7 6.3 6.8 7.3 7.8 8.4 8.9 9.4 10 10.5
20 5.5 6 6.5 7 7.5 8 8.5 9 9.5 10
21 5.2 5.7 6.1 6.6 7.1 7.6 8 8.5 9 9.5
22 5 5.4 5.9 6.3 6.8 7.2 7.7 8.1 8.6 9
23 4.7 5.2 5.6 6 6.5 6.9 7.3 7.8 8.2 8.6
24 4.5 5 5.4 5.8 6.2 6.6 7 7.5 7.9 8.3
25 4.4 4.8 5.2 5.6 6 6.4 6.8 7.2 7.6 8
26 4.2 4.6 5 5.3 5.7 6.1 6.5 6.9 7.3 7.6
27 4 4.4 4.8 5.1 5.5 5.9 6.2 6.6 7 7.4
28 3.9 4.2 4.6 5 5.3 5.7 6 6.4 6.7 7.1
29 3.7 4.1 4.4 4.8 5.1 5.5 5.8 6.2 6.5 6.8
30 3.6 4 4.3 4.6 5 5.3 5.6 6 6.3 6.6
31 3.5 3.8 4.1 4.5 4.8 5.1 5.4 5.8 6.1 6.4
32 3.4 3.7 4 4.3 4.6 5 5.3 5.6 5.9 6.2
33 3.3 3.6 3.9 4.2 4.5 4.8 5.1 5.4 5.7 6
34 3.2 3.5 3.8 4.1 4.4 4.7 5 5.2 5.5 5.8
35 3.1 3.4 3.7 4 4.2 4.5 4.8 5.1 5.4 5.7
36 3 3.3 3.6 3.8 4.1 4.4 4.7 5 5.2 5.5
37 2.9 3.2 3.5 3.7 4 4.3 4.5 4.8 5.1 5.4
38 2.8 3.1 3.4 3.6 3.9 4.2 4.4 4.7 5 5.2
39 2.8 3 3.3 3.5 3.8 4.1 4.3 4.6 4.8 5.1
40 2.7 3 3.2 3.5 3.7 4 4.2 4.5 4.7 5
41 2.6 2.9 3.1 3.4 3.6 3.9 4.1 4.3 4.6 4.8
42 2.6 2.8 3 3.3 3.5 3.8 4 4.2 4.5 4.7
43 2.5 2.7 3 3.2 3.4 3.7 3.9 4.1 4.4 4.6
44 2.5 2.7 2.9 3.1 3.4 3.6 3.8 4 4.3 4.5
45 2.4 2.6 2.8 3.1 3.3 3.5 3.7 4 4.2 4.4
46 2.3 2.6 2.8 3 3.2 3.4 3.6 3.9 4.1 4.3
47 2.3 2.5 2.7 2.9 3.1 3.4 3.6 3.8 4 4.2
48 2.2 2.5 2.7 2.9 3.1 3.3 3.5 3.7 3.9 4.1
49 2.2 2.4 2.6 2.8 3 3.2 3.4 3.6 3.8 4
50 2.2 2.4 2.6 2.8 3 3.2 3.4 3.6 3.8 4
The Employer's Contribution Rate Shall Be:
1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 2.0
When the State
Experience
Factor
Is: If the Employer's Benefit Wage Ratio Does Not Exceed:
1% 210% 220% 230% 240% 250% 260% 270% 280% 290% 300%
2 105 110 115 120 125 130 135 140 145 150
3 70 73.3 76.6 80 83.3 86.6 90 93.3 96.6 100
4 52.5 55 57.5 60 62.5 65 67.5 70 72.5 75
5 42 44 46 48 50 52 54 56 58 60
6 35 36.6 38.3 40 41.6 43.3 45 46.6 48.3 50
7 30 31.4 32.8 34.2 35.7 37.1 38.5 40 41.4 42.8
8 26.2 27.5 28.7 30 31.2 32.5 33.7 35 36.2 37.5
9 23.3 24.4 25.5 26.6 27.7 28.8 30 31.1 32.2 33.3
10 21 22 23 24 25 26 27 28 29 30
11 19 20 20.9 21.8 22.7 23.6 24.5 25.4 26.3 27.2
12 17.5 18.3 19.1 20 20.8 21.6 22.5 23.3 24.1 25
13 16.1 16.9 17.6 18.4 19.2 20 20.7 21.5 22.3 23
14 15 15.7 16.4 17.1 17.8 18.5 19.2 20 20.7 21.4
15 14 14.6 15.3 16 16.6 17.3 18 18.6 19.3 20
16 13.1 13.7 14.3 15 15.6 16.2 16.8 17.5 18.1 18.7
17 12.3 12.9 13.5 14.1 14.7 15.2 15.8 16.4 17 17.6
18 11.6 12.2 12.7 13.3 13.8 14.4 15 15.5 16.1 16.6
19 11 11.5 12.1 12.6 13.1 13.6 14.2 14.7 15.2 15.7
20 10.5 11 11.5 12 12.5 13 13.5 14 14.5 15
21 10 10.4 10.9 11.4 11.9 12.3 12.8 13.3 13.8 14.2
22 9.5 10 10.4 10.9 11.3 11.8 12.2 12.7 13.1 13.6
23 9.1 9.5 10 10.4 10.8 11.3 11.7 12.1 12.6 13
24 8.7 9.1 9.5 10 10.4 10.8 11.2 11.6 12 12.5
25 8.4 8.8 9.2 9.6 10 10.4 10.8 11.2 11.6 12
26 8 8.4 8.8 9.2 9.6 10 10.3 10.7 11.1 11.5
27 7.7 8.1 8.5 8.8 9.2 9.6 10 10.3 10.7 11.1
28 7.5 7.8 8.2 8.5 8.9 9.2 9.6 10 10.3 10.7
29 7.2 7.5 7.9 8.2 8.6 8.9 9.3 9.6 10 10.3
30 7 7.3 7.6 8 8.3 8.6 9 9.3 9.6 10
31 6.7 7 7.4 7.7 8 8.3 8.7 9 9.3 9.6
32 6.5 6.8 7.1 7.5 7.8 8.1 8.4 8.7 9 9.3
33 6.3 6.6 6.9 7.2 7.5 7.8 8.1 8.4 8.7 9
34 6.1 6.4 6.7 7 7.3 7.6 7.9 8.2 8.5 8.8
35 6 6.2 6.5 6.8 7.1 7.4 7.7 8 8.2 8.5
36 5.8 6.1 6.3 6.6 6.9 7.2 7.5 7.7 8 8.3
37 5.6 5.9 6.2 6.4 6.7 7 7.2 7.5 7.8 8.1
38 5.5 5.7 6 6.3 6.5 6.8 7.1 7.3 7.6 7.8
39 5.3 5.6 5.8 6.1 6.4 6.6 6.9 7.1 7.4 7.6
40 5.2 5.5 5.7 6 6.2 6.5 6.7 7 7.2 7.5
41 5.1 5.3 5.6 5.8 6 6.3 6.5 6.8 7 7.3
42 5 5.2 5.4 5.7 5.9 6.1 6.4 6.6 6.9 7.1
43 4.8 5.1 5.3 5.5 5.8 6 6.2 6.5 6.7 6.9
44 4.7 5 5.2 5.4 5.6 5.9 6.1 6.3 6.5 6.8
45 4.6 4.8 5.1 5.3 5.5 5.7 6 6.2 6.4 6.6
46 4.5 4.7 5 5.2 5.4 5.6 5.8 6 6.3 6.5
47 4.4 4.6 4.9 5.1 5.3 5.5 5.7 5.9 6.1 6.3
48 4.3 4.5 4.8 5 5.2 5.4 5.6 5.8 6 6.2
49 4.2 4.4 4.7 4.9 5.1 5.3 5.5 5.7 5.9 6.1
50 4.2 4.4 4.6 4.8 5 5.2 5.4 5.6 5.8 6
The Employer's Contribution Rate Shall Be:
2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 3.0
When the State
Experience
Factor
Is: If the Employer's Benefit Wage Ratio Does Not Exceed:
1% 310% 320% 330% 340% 350% 360% 370% 380% 390% 400%
2 155 160 165 170 175 180 185 190 195 200
3 103.3 106.6 110 113.3 116.6 120 123.4 125.6 130 133.3
4 77.5 80 82.5 85 87.5 90 92.5 95 97.5 100
5 62 64 66 68 70 72 74 76 78 80
6 51.6 53.3 55 56.6 58.3 60 61.6 63.3 65 66.6
7 44.2 45.7 47.1 48.5 50 51.4 52.8 54.2 55.7 57.1
8 38.7 40 41.2 42.5 43.7 45 46.2 47.5 48.7 50
9 34.4 35.5 36.6 37.7 38.8 40 41.1 42.2 43.3 44.4
10 31 32 33 34 35 36 37 38 39 40
11 28.1 29 30 30.9 31.8 32.7 33.6 34.5 35.4 36.3
12 25.8 26.6 27.5 28.3 29.1 30 30.8 31.6 32.5 33.3
13 23.8 24.6 25.3 26.1 26.9 27.6 28.4 29.2 30 30.7
14 22.1 22.8 23.5 24.2 25 25.7 26.4 27.1 27.8 28.5
15 20.6 21.3 22 22.6 23.3 24 24.6 25.3 26 26.6
16 19.3 20 20.6 21.2 21.8 22.5 23.1 23.7 24.3 25
17 18.2 18.8 19.4 20 20.5 21.1 21.7 22.3 22.4 23.5
18 17.2 17.7 18.3 18.8 19.4 20 20.5 21.1 21.6 22.2
19 16.3 16.8 17.3 17.8 18.4 18.9 19.4 20 20.5 21
20 15.5 16 16.5 17 17.5 18 18.5 19 19.5 20
21 14.7 15.2 15.7 16.1 16.6 17.1 17.6 18.1 18.5 19
22 14 14.5 15 15.4 15.9 16.3 16.8 17.2 17.7 18.1
23 13.4 13.9 14.3 14.7 15.2 15.6 16 16.5 16.9 17.3
24 12.9 13.3 13.7 14.1 14.5 15 15.4 15.8 16.2 16.5
25 12.4 12.8 13.2 13.6 14 14.4 14.8 15.2 15.6 16
26 11.9 12.3 12.6 13 13.4 13.8 14.2 14.6 15 15.3
27 11.4 11.8 12.2 12.5 12.9 13.3 13.7 14 14.4 14.8
28 11 11.4 11.7 12.1 12.5 12.8 13.2 13.5 13.9 14.2
29 10.6 11 11.3 11.7 12 12.4 12.7 13.1 13.4 13.7
30 10.3 10.6 11 11.3 11.6 12 12.3 12.6 13 13.3
31 10 10.3 10.6 10.9 11.2 11.6 11.9 12.2 12.5 12.9
32 9.6 10 10.3 10.6 10.9 11.2 11.5 11.8 12.1 12.5
33 9.3 9.7 10 10.3 10.6 10.9 11.2 11.5 11.8 12.1
34 9.1 9.4 9.7 10 10.2 10.5 10.8 11.1 11.4 11.7
35 8.8 9.1 9.4 9.7 10 10.2 10.5 10.8 11.1 11.4
36 8.6 8.8 9.1 9.4 9.7 10 10.2 10.5 10.8 11.1
37 8.3 8.6 8.9 9.1 9.4 9.7 10 10.2 10.5 10.8
38 8.1 8.4 8.6 8.9 9.2 9.4 9.7 10 10.2 10.5
39 7.9 8.2 8.4 8.7 8.9 9.2 9.4 9.7 10 10.2
40 7.7 8 8.2 8.5 8.7 9 9.2 9.5 9.7 10
41 7.5 7.8 8 8.2 8.5 8.7 9 9.2 9.5 9.7
42 7.3 7.6 7.8 8.1 8.3 8.5 8.8 9 9.2 9.5
43 7.2 7.4 7.6 7.9 8.1 8.3 8.6 8.8 9 9.3
44 7 7.2 7.5 7.7 7.9 8.1 8.4 8.6 8.8 9
45 6.8 7.1 7.3 7.5 7.7 8 8.2 8.4 8.6 8.8
46 6.7 6.9 7.1 7.3 7.6 7.8 8 8.2 8.4 8.7
47 6.6 6.8 7 7.2 7.4 7.6 7.8 8 8.3 8.5
48 6.4 6.6 6.8 7 7.2 7.5 7.7 7.9 8.1 8.3
49 6.3 6.5 6.7 6.9 7.1 7.3 7.5 7.7 7.9 8.1
50 6.2 6.4 6.6 6.8 7 7.2 7.4 7.6 7.8 8
The Employer's Contribution Rate Shall Be:
 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 4.0
When the State
Experience
Factor
Is: If the Employer's Benefit Wage Ratio Does Not Exceed:
1% 410% 420% 430% 440% 450% 460% 470% 480% 490% 500%
2 205 210 215 220 225 230 235 240 245 250
3 135.6 140 143.3 146.6 150 153.3 156.6 160 163.3 166.6
4 102.5 105 107.5 110 112.5 115 117.5 120 122.5 125
5 82 84 86 88 90 92 94 96 98 100
6 60.3 70 71.5 73.3 75 76.6 78.3 80 81.6 83.3
7 58.5 60 61.4 62 64.2 65.7 67.1 68.5 70 71.4
8 51.2 52.5 53.7 55 56.2 57.5 58.7 60 61.2 62.5
9 45.5 45.6 47.7 48.8 50 51.1 52.2 53.3 54.4 55.5
10 41 42 43 44 45 46 47 48 49 50
11 37.2 38.1 39 40 40.9 41.8 42.7 43.6 44.5 45.4
12 34.1 35 35.8 36.6 37.5 38.3 39.1 40 40.8 41.6
13 31.5 32.3 33 33.8 34.6 35.3 36.1 36.4 37.6 38.4
14 29.2 30 30.7 31.4 32.1 32.8 33.5 34.2 35 35.7
15 27.3 28 28.6 29.3 30 30.6 31.3 32 32.6 33.3
16 25.6 26.2 26.8 27.5 28.1 28.7 29.3 30 30.6 31.2
17 24.1 24.7 25.2 25.8 26.4 27 27.6 28.2 28.8 29.4
18 22.7 23.3 23.8 24.4 25 25.5 26.1 26.6 27.2 27.7
19 21.5 22.1 22.6 23.1 23.6 24.2 24.7 25.2 25.7 26.3
20 20.5 21 21.5 22 22.5 23 23.5 24 24.5 25
21 19.5 20 20.4 20.9 21.4 21.9 22.3 22.6 23.3 23.8
22 18.6 19 19.5 20 20.4 20.9 21.3 21.8 22.2 22.7
23 17.8 18.2 18.7 19.1 19.5 20 20.4 20.8 21.3 21.7
24 17 17.5 17.9 18.3 18.7 19.1 19.5 20 20.4 20.8
25 16.4 16.8 17.2 17.6 18 18.4 18.8 19.2 19.6 20
26 15.7 16.1 16.5 16.9 17.3 17.5 18 18.4 18.8 19.2
27 15.1 15.5 15.9 16.3 16.6 17 17.4 17.7 18.1 18.5
28 14.6 15 15.3 15.7 16 16.4 16.7 17.1 17.5 17.8
29 14.1 14.4 14.8 15.1 15.5 15.8 16.2 16.5 16.9 17.2
30 13.6 14 14.3 14.6 15 15.3 15.6 16 16.3 16.6
31 13.2 13.5 13.8 14.1 14.5 14.8 15.1 15.4 15.8 16.1
32 12.8 13.1 13.4 13.7 14 14.3 14.6 15 15.3 15.6
33 12.4 12.7 13 13.3 13.6 13.9 14.2 14.5 14.8 15.1
34 12 12.3 12.6 12.9 13.2 13.5 13.8 14.1 14.4 14.7
35 11.7 12 12.2 12.5 12.8 13.1 13.4 13.7 14 14.2
36 11.3 11.6 11.9 12.2 12.5 12.7 13 13.3 13.6 13.8
37 11 11.3 11.6 11.8 12.1 12.4 12.7 12.9 13.2 13.5
38 10.7 11 11.3 11.5 11.8 12.1 12.3 12.6 12.8 13.1
39 10.5 10.7 11 11.2 11.5 11.7 12 12.3 12.5 12.8
40 10.2 10.5 10.7 11 11.2 11.5 11.7 12 12.2 12.5
41 10 10.2 10.4 10.7 10.9 11.2 11.4 11.7 11.9 12.2
42 9.7 10 10.2 10.4 10.7 10.9 11.1 11.4 11.6 11.9
43 9.5 9.7 10 10.2 10.4 10.7 10.9 11.1 11.4 11.6
44 9.3 9.5 9.7 10 10.2 10.4 10.5 10.9 11.1 11.3
45 9.1 9.3 9.5 9.7 10 10.2 10.4 10.6 10.8 11.1
46 8.9 9.1 9.3 9.5 9.7 10 10.2 10.4 10.6 10.8
47 8.7 8.9 9.1 9.3 9.5 9.7 10 10.2 10.4 10.6
48 8.5 8.7 8.9 9.1 9.3 9.5 9.7 10 10.2 10.4
49 8.3 8.5 8.7 8.9 9.1 9.3 9.5 9.8 10 10.2
50 8.2 8.4 8.6 8.8 9 9.2 9.4 9.6 9.8 10
The Employer's Contribution Rate Shall Be:
4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 4.9 5.0
When the State
Experience
Factor
Is: If the Employer's Benefit Wage Ratio Does Not Exceed:
1% 510% 520% 530% 540%
2 255 260 265 270
3 170 173.3 176.6 180
4 127.5 130 132.5 135
5 102 104 106 108
6 85 86.6 88.3 90
7 72.8 74.2 75.7 77.1
8 63.7 65 66.2 67.5
9 56.6 57.7 58.8 60
10 51 52 53 54
11 46.3 47.2 48.1 49
12 42.5 43.3 44.1 45
13 39.2 40 40.7 41.5
14 36.4 37.1 37.8 38.5
15 34 34.6 35.3 36
16 31.8 32.5 33.1 33.7
17 30 30.5 31.1 31.7
18 28.3 28.8 29.4 30
19 26.8 27.3 27.8 28.4
20 25.5 26 26.5 27
21 24.2 24.7 25.2 25.7
22 23.1 23.6 24 24.5
23 22.1 22.6 23 23.4
24 21.2 21.6 22 22.5
25 20.4 20.8 21.2 21.6
26 19.6 20 20.3 20.7
27 18.8 19.2 19.6 20
28 18.2 18.5 18.9 19.2
29 17.5 17.9 18.2 18.6
30 17 17.3 17.6 18
31 16.4 16.7 17.1 17.4
32 15.9 16.2 16.5 16.8
33 15.4 15.7 16 16.3
34 15 15.2 15.5 15.8
35 14.5 14.8 15.1 15.4
36 14.1 14.4 14.7 15
37 13.7 14 14.3 14.5
38 13.4 13.6 13.9 14.2
39 13 13.3 13.5 13.8
40 12.7 13 13.2 13.5
41 12.4 12.6 12.9 13.1
42 12.1 12.4 12.6 12.8
43 11.8 12 12.3 12.5
44 11.5 11.8 12 12.2
45 11.3 11.5 11.7 12
46 11 11.3 11.5 11.7
47 10.8 11 11.2 11.4
48 10.6 10.8 11 11.2
49 10.4 10.6 10.8 11
50 10.2 10.4 10.6 10.8
The Employer's Contribution Rate Shall Be:
5.1 5.2 5.3 5.4
If the employer's benefit wage ratio exceeds the amount in the last column of the table on the line for the current year's state experience factor, his contribution rate shall be five and five-tenths percent (5.5%).
Added by Laws 1980, c. 323, § 3-109, eff. July 1, 1980. Amended by Laws 1983, c. 270, § 11, emerg. eff. June 23, 1983; Laws 1986, c. 205, § 7, emerg. eff. June 6, 1986.
§40-3-109.1. Rate reduction.
RATE REDUCTION. Notwithstanding the provisions of Sections 3-103, 3-109, 3-110 and 3-113 of this title, for the time period beginning July 1, 1998, and ending December 31, 2001, the contribution rate assigned to an employer shall be reduced by fifty percent (50%); provided: the tax rate of employers assigned a tax rate pursuant to Sections 3-103 and 3-110 of this title shall not be reduced to less than one percent (1%); employers who qualify for an earned rate calculated pursuant to Section 3-109 of this title, and are given a rate of five and one-half percent (5.5%) shall be reduced to no less than five and four-tenths percent (5.4%); and employers who qualify for an earned rate calculated pursuant to Section 3-109 of this title, and are given a rate of one-tenth of one percent (0.1%), shall be reduced to a rate of zero percent (0.0%).
Added by Laws 1997, c. 30, § 14, eff. July 1, 1997. Amended by Laws 1998, c. 161, § 11, eff. July 1, 1998; Laws 1999, c. 382, § 1, eff. July 1, 1999.
§40-3-109.2. Rate reduction for computer fund assessment.
RATE REDUCTION FOR COMPUTER FUND ASSESSMENT.
Notwithstanding the provisions of Sections 3-103, 3-109, 3-110, and 3-113 of Title 40 of the Oklahoma Statutes, for the time period beginning July 1, 1997, and ending June 30, 1998, the contribution rate assigned to an employer shall be reduced by fifty percent (50%). Provided, the tax rate of employers assigned a tax rate pursuant to Sections 3-103 and 3-110 of Title 40 of the Oklahoma Statutes shall not be reduced to less than one percent (1%). Provided further, employers who qualify for an earned rate calculated pursuant to Section 3-109 of Title 40 of the Oklahoma Statutes, and are given a rate of five and one-half percent (5.5%), shall not be eligible for the rate reduction provided for in this section.
Added by Laws 1997, c. 391, § 3, eff. July 1, 1997.
§40-3-110. Minimum contributions.
MINIMUM CONTRIBUTIONS. No employer's rate shall be less than the greater of one percent (1%) or the average contribution rate paid by all employers during the second year preceding the current calendar year unless throughout the one (1) calendar year immediately preceding such year some eligible individual could have filed a claim in each quarter of said year establishing a base period as prescribed by Section 1-202 of this title which would include wages from that employer.
Added by Laws 1980, c. 323, § 3-110, eff. July 1, 1980. Amended by Laws 1994, c. 195, § 4, emerg. eff. May 16, 1994; Laws 1995, c. 340, § 16, eff. Jan. 1, 1996.
§40-3-111. Acquiring employers.
SUCCESSOR AND PREDECESSOR EMPLOYERS.
A. Any employing unit, whether or not an employing unit at the time of the acquisition, which acquires substantially all of the trade, organization, employees, business, or assets of any employer (excepting in such case any assets retained by that employer incident to the liquidation of the employer's obligations) and who continues the operations of the predecessor employer as a going business, shall be determined to be a successor employer. The successor employer shall acquire the merit rating account of the predecessor employer, including the predecessor's actual contribution and benefit experience, annual payrolls, and contribution rate. The successor employer shall also become jointly and severally liable with the predecessor employer for all current or delinquent contributions, interest, penalties and fees owed to the Commission by the predecessor employer.
Written notice of all current or delinquent contributions, interest, penalties and fees owed to the Commission by the predecessor employer shall be provided to the successor employer by the predecessor employer prior to the sale of the business. Failure to give such notice may subject the predecessor employer to a penalty as specified by the rules of the Commission.
Any remuneration for services covered by the Employment Security Act of 1980 or other state unemployment compensation acts paid by the predecessor employer shall be considered as having been paid by the successor employer. The initial determination regarding whether or not an acquiring employer will become a successor to a predecessor account shall be made by the Commission or its duly authorized representative and notice of this determination shall be delivered to the acquiring employer or mailed to his or her last-known address.
B. Within twenty (20) days after the mailing of the notice of initial determination provided for in subsection A of this section, the employer may file with the Commission or its representative a written protest to the initial determination and request an oral hearing to present evidence in support of its protest. The Commission or its representative shall, by written notice, advise the employer of the date of the hearing, which shall not be less than ten (10) days from the date of the mailing of the written notice. At the discretion of the Commission, the hearing shall be conducted by the Commission, or by a representative appointed by the Commission for this purpose. Pursuant to the hearing, the Commission or its representative shall, as soon as practicable:
1. Make an order affirming, modifying or reversing the initial determination;
2. Immediately send to the employer a written notice thereof; and
3. In accordance with the order, notify the employer of any additional contributions, interest, penalties or fees then due or owing by the employer and the employer's contribution rate.
If any employer fails to file its written protest to the initial determination within the period of twenty (20) days, as provided by this subsection, then the initial determination shall be final, and no appeal shall thereafter be allowed.
C. Any employing unit, whether or not an employing unit at the time of the acquisition, which acquires substantially all of the trade, organization, business, or assets of an employer, at one or more separate and distinct establishments and who continues the acquired operations of the predecessor as a going business, shall acquire that portion of the experience rating account of the predecessor employer that is applicable to the establishment or establishments, if the employing unit, immediately after the acquisition, is an employer; provided, however, that the employing unit shall not acquire a portion of the experience rating account unless written application therefor is received by the Commission within one hundred twenty (120) days after the date of the acquisition together with evidence sufficient for the Commission to determine which portion of the experience rating account of the predecessor is applicable to the acquired operations, and the Commission finds that the transfer will not tend to defeat or obstruct the object and purpose of the Employment Security Act of 1980; and provided further, that the portion of the experience rating account so transferred, including the taxable payrolls and benefit wages, shall not thereafter be used in computing an experience rating contribution rate for the transferring employer. For the purpose of this subsection a separate and distinct establishment means all operations conducted by an employer at one business location which is readily segregable and identifiable as a separate business organization.
D. If the Commission finds that any report required to complete a determination of contribution rate has not been filed or if filed is incorrect or insufficient, and any such fact or information has not already been established or found in connection with some other proceeding pursuant to the provisions of the Employment Security Act of 1980, an estimate may be made of the information required on the basis of the best evidence reasonably available to it at the time. Notice shall be given of such determination as provided for contribution rate in subsection C of Section 3-102 of this title and the employer may appeal therefrom as provided in subsection D of Section 3-102 of this title.
Added by Laws 1980, c. 323, § 3-111, eff. July 1, 1980. Amended by Laws 1983, c. 270, § 13, emerg. eff. June 23, 1983; Laws 1990, c. 333, § 6, emerg. eff. May 31, 1990; Laws 1993, c. 219, § 14, eff. Sept. 1, 1993; Laws 1995, c. 340, § 17, eff. Jan. 1, 1996; Laws 1997, c. 30, § 15, eff. July 1, 1997; Laws 2004, c. 102, § 7, eff. Nov. 1, 2004; Laws 2005, c. 182, § 7, eff. Nov. 1, 2005.
§40-3-111.1. Successor and predecessor employers - Special rules on transfer of rates and experience.
SUCCESSOR AND PREDECESSOR EMPLOYERS - SPECIAL RULES ON TRANSFER OF RATES AND EXPERIENCE.
A. Notwithstanding any other provision of law, the following shall apply regarding assignments of rates and transfers of experience:
1. If an employer transfers its trade or business, or a portion thereof, to another employer and, at the time of the transfer, there is substantially common ownership, management or control of the two employers, then the unemployment experience attributable to the transferred trade or business shall be combined with the unemployment experience of the employer to whom such business is so transferred; and
2. Whenever a person who is not an employer under the Employment Security Act of 1980 at the time it acquires the trade or business of an employer, the unemployment experience rate of the acquired business shall not be transferred to such person if the Commission finds that the person acquired the business solely or primarily for the purpose of obtaining a lower rate of contributions. Instead, the person shall be assigned the minimum contribution rate under Section 3-110 of Title 40 of the Oklahoma Statutes. In determining whether the business was acquired solely or primarily for the purpose of obtaining a lower rate of contributions, the Commission shall use objective factors which may include the cost of acquiring the business, whether the person continued the business enterprise of the acquired business, how long such business enterprise was continued, or whether a substantial number of new employees were hired for performance of duties unrelated to the business activity conducted prior to acquisition.
B. 1. If a person knowingly violates or attempts to violate paragraph 1 or 2 of subsection A of this section or any other provision of the Employment Security Act of 1980 related to determining the assignment of the contribution rate, or if a person knowingly advises another person in a way that results in a violation of such provision, the person shall be subject to the following penalties:
a. if the person is an employer, then the employer shall be assessed a penalty equal to ten percent (10%) of the actual taxes due in the calendar quarter in which the employer violated or attempted to violate the provisions of this section and a penalty equal to ten percent (10%) of the actual taxes due in each of the following three (3) calendar quarters. The funds in payment of this penalty shall be deposited in the Oklahoma Employment Security Commission revolving fund established under section 4-901 of Title 40 of the Oklahoma Statutes,
b. if the person is not an employer, the person shall be subject to a civil money penalty of at least One Hundred Dollars ($100.00) and not more than Five Thousand Dollars ($5,000.00) to be determined by the Assessment Board of the Oklahoma Employment Security Commission. Any fine shall be deposited in the Oklahoma Employment Security Commission Revolving Fund established under Section 4-901 of Title 40 of the Oklahoma Statutes.
2. For purposes of this section, the term "knowingly" means having actual knowledge of or acting with deliberate ignorance or reckless disregard for the prohibition involved.
3. For the purposes of this section, the term "violates or attempts to violate" includes, but is not limited to, intent to evade, misrepresentation or willful nondisclosure.
4. In addition to the penalty imposed by paragraph 1 of this subsection, any person who violates the provisions of this section shall be guilty of a misdemeanor and may be imprisoned for up to one (1) year.
C. The Commission shall establish procedures to identify the transfer or acquisition of a business for purposes of this section.
D. For purposes of this section:
1. "Person" has the meaning given such term by 26 U.S.C. Section 7701(a)(1); and
2. "Trade or business" shall include the employers workforce.
E. This section shall be interpreted and applied in such a manner as to meet the minimum requirements contained in any guidance or regulations issued by the United States Department of Labor.
Added by Laws 2005, c. 182, § 8, eff. Nov. 1, 2005.
§40-3-112. Employers with at least one but less than three years' experience.
EMPLOYERS WITH AT LEAST ONE BUT LESS THAN THREE YEARS' EXPERIENCE. For each calendar year commencing after December 31, 1954, for those employers who have had less than three (3) but at least one (1) year of compensation experience, the Commission shall determine the contribution rate of each such employer on the basis of his compensation experience as determined by the fund's maximum liability for benefits to their employees who have been paid benefits modified by the state experience as to the average duration of benefit payments as provided by law.
Added by Laws 1980, c. 323, § 3-112, eff. July 1, 1980.
§40-3-113. Conditional factors.
CONDITIONAL FACTORS. For each calendar year commencing after December 31, 1977, except for those employers with a benefit wage ratio of zero (0) and as otherwise provided in this section, the contribution rate for each employer for such calendar year shall be increased, in the circumstances and in the amounts as follows:
(1) - Condition "a" - If at the beginning of each such year the balance of the unemployment compensation fund is less than three and one-half (3 1/2) times, but not less than three (3) times, the net benefits paid for the most recent five (5) consecutive completed calendar years divided by five (5), the contribution rate for each employer whose benefit wage ratio with respect to such year is zero percent (0%) shall be increased by one-tenth of one percent (1/10 of 1%) of wages paid by the employer during such year; such contribution rate for each employer whose benefit rate wage ratio with respect to such year is more than zero percent (0%), but not more than one-tenth of one percent (1/10 of 1%), shall be increased by two-tenths of one percent (2/10 of 1%) of wages paid by the employer during such year and such contribution rate for each employer whose benefit wage ratio with respect to such year is more than one-tenth of one percent (1/10 of 1%), shall be increased by three-tenths of one percent (3/10 of 1%) of wages paid by the employer during such year.
(2) - Condition "b" - If at the beginning of each such year the balance of the unemployment compensation fund is less than three (3) times, but not less than two and one-half (2 1/2) times, the net benefits paid for the most recent five (5) consecutive completed calendar years divided by five (5), the contribution rate for each employer shall be increased by thirty-three and one-third percent (33 1/3%) of such rate; provided that such total rate, if not a multiple of one-tenth of one percent (1/10 of 1%), shall be computed to the next higher multiple of one-tenth of one percent (1/10 of 1%) of wages paid by the employer during such year; provided, further, that such contribution rate for each employer whose benefit wage ratio with respect to such year is zero percent (0%) shall be increased by two-tenths of one percent (2/10 of 1%) of wages paid by the employer during such year; such contribution rate for each employer whose benefit wage ratio with respect to such year is more than zero percent (0%), but not more than one-tenth of one percent (1/10 of 1%), shall be increased by three-tenths of one percent (3/10 of 1%) of wages paid by the employer during such year; and such contribution rate for each employer whose benefit wage ratio with respect to such year is more than one-tenth of one percent (1/10 of 1%), shall be increased by at least four-tenths of one percent (4/10 of 1%) of wages paid by the employer during such year.
(3) - Condition "c" - If at the beginning of each such year the balance of the unemployment compensation fund is less than two and one-half (2 1/2) times, but not less than two (2) times, the net benefits paid for the most recent five (5) consecutive completed calendar years divided by five (5), the contribution rate for each employer shall be increased by one-half (1/2) of such rate; provided that such total rate, if not a multiple of one-tenth of one percent (1/10 of 1%), shall be computed to the next higher multiple of one-tenth of one percent (1/10 of 1%) of wages paid by the employer during such year; provided, further, that such contribution rate for each employer whose benefit wage ratio with respect to such year is zero percent (0%) shall be increased by three-tenths of one percent (3/10 of 1%) of wages paid by the employer during such year; such contribution rate for each employer whose benefit wage ratio with respect to such year is more than zero percent (0%), but not more than one-tenth of one percent (1/10 of 1%), shall be increased by four-tenths of one percent (4/10 of 1%) of wages paid by the employer during such year; and such contribution rate for each employer whose benefit wage ratio with respect to such year is more than one-tenth of one percent (1/10 of 1%), shall be increased by at least five-tenths of one percent (5/10 of 1%) of wages paid by the employer during such year.
(4) - Condition "d" - If at the beginning of each such year the balance of the unemployment compensation fund is less than two (2) times the net benefits paid for the most recent five (5) consecutive completed calendar years divided by five (5), the contribution rate for each employer shall be increased by sixty-six and two-thirds percent (66 2/3%) of such rate; provided that such total rate, if not a multiple of one-tenth of one percent (1/10 of 1%) shall be computed to the next higher multiple of one-tenth of one percent (1/10 of 1%) of wages paid by the employer during such year; provided, further, that such contribution rate for each employer whose benefit wage ratio with respect to such year is zero percent (0%) shall be increased by four-tenths of one percent (4/10 of 1%) of wages paid by the employer during such year; such contribution rate for each employer whose benefit wage ratio with respect to such year is more than zero percent (0%), but not more than one-tenth of one percent (1/10 of 1%), shall be increased by five-tenths of one percent (5/10 of 1%) of wages paid by the employer during such year; such contribution rate for each employer whose benefit wage ratio with respect to such year is more than one-tenth of one percent (1/10 of 1%), shall be increased by at least six-tenths of one percent (6/10 of 1%) of wages paid by the employer during such year.
(5) The contribution rate, excluding any surcharge, for an employer whose contribution rate is three and four-tenths percent (3.4%) or more shall not be increased by more than two (2) percentage points in any one (1) year. The contribution rate, excluding any surcharge, for an employer whose contribution rate is less than three and four-tenths percent (3.4%) shall not be increased to more than five and four-tenths percent (5.4%) in one (1) year.
For purposes of this section "net benefits paid for the most recent five (5) consecutive completed calendar years" means the total amount of monies withdrawn from this state's account in the unemployment trust fund in the United States Treasury for each of the most recent five (5) consecutive completed calendar years, plus the balance of such monies in the benefit account at the start of such period, less the balance of such monies in the benefit account at end of such period. The contribution rate for those employers with a benefit wage ratio of zero (0) shall be two-tenths of one percent (2/10 of 1%) during those years when the fund is in conditions "a", "b", and "c", and shall be three-tenths of one percent (3/10 of 1%) during those years when the fund is in condition "d".
(6) There is hereby created a Special Surtax Fund. All money collected from the surtax imposed pursuant to this paragraph shall be transferred from the clearing account to the Special Surtax Fund. Funds in the Special Surtax Fund shall be used for repayments to the state's account in the unemployment trust fund for amounts previously withdrawn for refunds of employer contributions made pursuant to the requirements of paragraph (5) of this section. After Three Million Nine Hundred Sixty-nine Thousand Two Hundred Seventy-three Dollars and twenty-eight cents ($3,969,273.28) has been deposited in the state's account in the unemployment trust fund any remaining balance in the Special Surtax Fund shall also be transferred to the fund. When all such transfers have been made the Special Surtax Fund shall cease to exist.
Notwithstanding any other provision, for the first calendar quarter of 1987, the maximum assignable contribution rate shall be five and four-tenths percent (5.4%). A special surtax shall be assigned to employers who would, in the absence of the preceding sentence, be assigned a rate in excess of five and four-tenths percent (5.4%). The Commission shall determine the rate of surtax to be assigned to each employer to whom this provision applies in the same manner used to assign contribution rates pursuant to this article. The provisions for collecting past-due contributions shall apply to collection of the surtax. The surtax collected shall after deposit in the clearing account be transferred to the Special Surtax Fund.
(7) Beginning January 1, 1996, except for this paragraph and paragraph (8) of this section, the provisions of this section shall be suspended until the Unemployment Trust Fund reaches a High Cost Multiple of one and one-fourth (1.25). The Oklahoma Employment Security Commission shall determine the High Cost Multiple at the end of each calendar year and shall include the result of its computation in a regularly published periodical together with other employment-related data. As used in this section, "High Cost Multiple" shall be a figure computed as follows:
(a) first, net fund reserves in the Unemployment Compensation Fund as of the date of each computation required by this section shall be divided by total wages earned in insured employment for the twelve (12) months preceding the date of the quarterly High Cost Multiple computation,
(b) second, the result of the computation from subparagraph (a) of this paragraph shall be divided by a figure which is a quotient derived from the computation of the High-Cost Rate contained in subparagraph (c) of this paragraph, and
(c) third, the highest ratio of total state benefit payments experienced previously in any twelve (12) consecutive months to total wages earned in insured employment for the same period shall be the High-Cost Rate.
The result of all computations contained in subparagraphs (a) through (c) of this paragraph, performed in the sequence as specified in this section, shall be known as the High Cost Multiple;
(8) Prior to the beginning of each calendar year, the Commission shall prepare an estimate of the financial condition of the trust fund. If the estimate for the year shows the balance, at any time during the year, will fall below the High Cost Multiple as defined in paragraph (7) of this section, then the Commission shall reinstate the suspended provisions of this section.
Added by Laws 1980, c. 323, § 3-113, eff. July 1, 1980. Amended by Laws 1983, c. 270, § 12, emerg. eff. June 23, 1983; Laws 1986, c. 205, § 8, emerg. eff. June 6, 1986; Laws 1987, c. 10, § 3, emerg. eff. March 31, 1987; Laws 1995, c. 340, § 18, eff. Jan. 1, 1996.
§40-3-114. Estimate of Financial Condition of Fund - Surcharge.
ESTIMATE OF FINANCIAL CONDITION OF FUND - SURCHARGE. Prior to the beginning of each calendar quarter, the Commission shall prepare an estimate of the financial condition of the fund for the quarter. Effective July 1, 1992, if the estimate for any quarter shows a balance at any time during the quarter of less than Twenty-five Million Dollars ($25,000,000.00), the Commission shall assess and collect a surcharge for that calendar quarter in an amount sufficient to keep the balance at Twenty-five Million Dollars ($25,000,000.00).
The surcharge shall be charged to each employer in proportion to the employer's total tax liability as of the last completed quarter for the current calendar year and shall not exceed thirty-three and one-third percent (33 1/3%) per taxable year.
Added by Laws 1983, c. 270, § 14, emerg. eff. June 23, 1983. Amended by Laws 1986, c. 205, § 9, emerg. eff. June 6, 1986; Laws 1992, c. 318, § 4, eff. July 1, 1992.
§40-3-115. Protest of Determinations.
PROTEST OF DETERMINATIONS.
A. If a determination is made by the Oklahoma Employment Security Commission on any aspect of an employer's account, and a method of protest of the determination is not set out in the statute under which the determination was made, then the employer may protest under the procedure set forth in subsection B of this section.
B. 1. All determinations affecting an employer account must be made by the Commission in writing and mailed to the employer at the employer's last-known address.
2. Within twenty (20) days after the mailing of the Notice of Determination as provided for in paragraph 1 of this subsection, the employer may file with the Commission, or its representative, a written protest to the determination and a request for an oral hearing de novo to present evidence in support of the protest.
3. If any employer fails to file a written protest within twenty (20) days as provided by this subsection, then the initial determination of the Commission shall be final, and no appeal shall be allowed.
4. The Commission or its representatives shall, by written notice, advise the employer of the date of the hearing, which shall not be less than ten (10) days from the date of the mailing of the written notice. At the discretion of the Commission, this hearing shall be conducted by the Commission, or by a representative appointed by the Commission for this purpose.
5. Pursuant to the hearing, the Commission or its representative shall, as soon as practicable, make a written order setting forth its findings of fact and conclusions of law, and shall mail it to the employer at the employer's last-known address.
6. The employer or the Commission may appeal the order to the district court by filing a Petition for Review with the clerk of the court within thirty (30) days after the date the order was mailed to all parties. The mailing date shall be specifically stated in the order. All appeals shall be governed by Part IV of Article III of the Employment Security Act of 1980.
Added by Laws 1997, c. 30, § 18, eff. July 1, 1997.
§40-3-201. Employer for any part of year deemed employer for entire year.
EMPLOYER FOR ANY PART OF YEAR DEEMED EMPLOYER FOR ENTIRE YEAR. Except as provided in Section 3-203, any employing unit which is or becomes an employer subject to this act within any calendar year shall be deemed to be an employer during the whole of such calendar year.
Added by Laws 1980, c. 323, § 3-201, eff. July 1, 1980.
§40-3-202. Termination of coverage.
TERMINATION OF COVERAGE.
Termination of coverage with respect to 1977 or prior years shall be determined in accordance with provisions applicable to those years. Except as otherwise provided in Section 3-203 of this title, an employing unit shall cease to be an employer subject to this act only as of the first day of any calendar year and only if it files with the Commission, during January of such year, a written application for termination of coverage, and the Commission finds that there were (1) no calendar quarter within the preceding calendar year in which such employing unit paid for service in employment wages of One Thousand Five Hundred Dollars ($1,500.00) or more or (2) no twenty (20) different days, each day being in a different calendar week within the preceding calendar year, within which such employing unit employed one or more individuals in employment subject to this act; provided further that religious, charitable, educational or other organizations covered under paragraph 8 of Section 1-208 of this title shall be so terminated if the Commission finds that there were no twenty (20) different days, each day being in a different calendar week within the preceding calendar year, within which such employing unit employed four or more individuals in employment subject to this act. Provided further that agricultural labor as covered under paragraph 10 of Section 1-208 of this title shall be so terminated if the Commission finds that there were (1) no calendar quarter within the preceding calendar year in which such employing unit paid wages of Twenty Thousand Dollars ($20,000.00) or more, or (2) no twenty (20) different days, each day being in a different calendar week within the preceding calendar year, within which such employing unit employed ten (10) or more individuals in employment subject to this act; provided further that domestic service as covered under paragraph 11 of Section 1-208 of this title shall be terminated if the Commission finds that there were no calendar quarters within the preceding calendar year in which such employing unit paid wages of One Thousand Dollars ($1,000.00) or more. Provided, however, that if the Federal Congress shall, by amendment to the Federal Unemployment Tax Act, redefine the term employer to include employing units not qualified as employers under this section, all of the provisions of this act shall be applicable to such employing units. For the purposes of this section, the two or more employing units mentioned in paragraph 2, 3 or 4 of Section 1-208 of this title shall be treated as a single employing unit.
Added by Laws 1980, c. 323, § 3-202, eff. July 1, 1980. Amended by Laws 2005, c. 182, § 9, eff. Nov. 1, 2005.
§40-3-203. Election by employer.
ELECTION BY EMPLOYER.
A. An employing unit, not otherwise subject to the Employment Security Act of 1980, which files with the Oklahoma Employment Security Commission its written election to become an employer subject hereto for not less than two (2) calendar years shall, with the written approval of the election by the Commission, become an employer subject hereto to the same extent as all other employers, as of the date stated in the approval, and shall cease to be subject hereto as of January 1 of any calendar year subsequent to the two (2) required calendar years, only if during January of that year it has filed with the Commission a written application for termination of coverage as provided in this section.
B. Any employing unit for which services that do not constitute employment as defined in the Employment Security Act of 1980 are performed may file with the Commission a written election that all such services with respect to which payments are not required under an employment security law of any other state or of the federal government and which are performed by individuals in its employ in one or more distinct establishments or places of business shall be deemed to constitute employment by an employer for all the purposes of the Employment Security Act of 1980 for not less than two (2) calendar years. Upon the written approval of the election by the Commission, such services shall be deemed to constitute employment subject to the Employment Security Act of 1980 from and after the date stated in the approval. Such services shall cease to be deemed employment subject hereto as of January 1 of any calendar year subsequent to the two (2) required calendar years, only if during January of that year the employing unit has filed with the Commission a written application for termination of the coverage.
C. The Commission may terminate the election of an employer or employing unit made pursuant to subsection A or B of this section at any time the Commission determines that the employer or employing unit is not abiding by all requirements of the Employment Security Act of 1980 and the rules for the administration of that act, or if the employer or employing unit that has made an election for coverage becomes delinquent in the payment of its unemployment tax contributions, interest, penalties or fees.
D. If the Commission makes a determination that an application of an employer or employing unit submitted under subsections A or B of this section should be denied, or that a voluntary election should be terminated under subsection C of this section, the Commission shall notify the affected employer or employing unit in writing. The notification of the determination shall be delivered to the employer, or mailed to the employer's last-known address.
E. Within twenty (20) days after the mailing of the notice of determination provided for in subsection D of this section, the employer may file with the Commission or its representative a written protest to the initial determination and request an oral hearing to present evidence in support of its protest. The Commission or its representative shall, by written notice, advise the employer of the date of hearing, which shall not be less than ten (10) days from the date of the mailing of the written notice. At the discretion of the Commission, the hearing shall be conducted by the Commission, or by a representative appointed by the Commission for this purpose. Pursuant to the hearing, the Commission or its representative shall, as soon as practicable:
1. Make an order affirming, modifying or reversing the initial determination;
2. Immediately send to the employer a written notice thereof; and
3. In accordance with the order, notify the employer of any changes in the status of his or her account.
If any employer fails to file its written protest to the initial determination within the period of twenty (20) days, as provided by this subsection, then the initial determination shall be final, and no appeals shall thereafter be allowed.
Added by Laws 1980, c. 323, § 3-203, eff. July 1, 1980. Amended by Laws 1993, c. 219, § 15, eff. Sept. 1, 1993; Laws 1997, c. 30, § 19, eff. July 1, 1997.
§40-3-301. Penalty and interest on past-due contributions.
PENALTY AND INTEREST ON PAST-DUE CONTRIBUTIONS. A. If contributions are not paid on the date on which they are due and payable as prescribed by the Oklahoma Employment Security Commission, the whole or part thereafter remaining unpaid shall bear interest at the rate of one percent (1%) per month for each month or fraction thereof from and after such date until payment is received by the Commission. The date on which payment of contributions is deemed to have been received may be determined by such rules as the Commission may prescribe.
B. If any employer fails or refuses to file contribution and wage reports required under the provisions of this act within fifteen (15) days after written notice has been mailed to the employer by the Commission or its representative regardless whether or not any wages or taxable wages were paid, there shall accrue a penalty of One Hundred Dollars ($100.00) and in addition to such penalty, there shall be a penalty of ten percent (10%) added to the total contributions due, collected and paid. Such penalties shall be in addition to any interest due. The provisions of this subsection shall not apply to employers as provided in subsection B of Section 3-806 of this title.
Added by Laws 1980, c. 323, § 3-301, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 17, operative July 1, 1981; Laws 1990, c. 333, § 7, emerg. eff. May 31, 1990; Laws 1993, c. 219, § 16, eff. Sept. 1, 1993.
§40-3-302. Collections.
COLLECTIONS. A. If any employer defaults in any payment of contributions, interest, penalty or fees thereon, the amount due may be collected by civil action in the name of the State of Oklahoma. Civil actions brought under this section to collect contributions, interest, penalty or fees thereon from an employer shall be heard by the court at the earliest possible date and shall be entitled to preference upon the calendar of the court over all other civil actions except petitions for judicial review under this act.
B. The courts of this state shall in like manner entertain actions to collect contributions, interest, penalty or fees thereon for which liability has accrued under the unemployment compensation law of any other state or of the federal government.
C. No suit, including an action for a declaratory judgment, shall be maintained and no writ or process shall be issued by any court of this state which has the purpose or effect of restraining, delaying, or forestalling the collection of any contributions, interest, penalties and fees under this act or substituting any collection procedure for those prescribed in this act.
Added by Laws 1980, c. 323, § 3-302, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 18, emerg. eff. June 25, 1981; Laws 1993, c. 219, § 17, eff. Sept. 1, 1993.
§40-3-303. Priorities under legal dissolutions or distributions.
PRIORITIES UNDER LEGAL DISSOLUTIONS OR DISTRIBUTIONS. In the event of any distribution of an employer's assets pursuant to an order of any court or under the laws of this state, including any receivership, assignment for benefit of creditors, adjudicated insolvency, composition, or similar proceedings, all contributions, interest, penalties and fees imposed by the provisions of this act are hereby declared to constitute a lien in favor of the state upon all franchises, property, and the rights to property, whether real or personal, then belonging to or thereafter acquired by the person, firm, corporation, partnership or association owing the contribution, whether such property is employed by such person, firm, corporation, partnership or association in the prosecution of business, or is in the hands of an assignee, trustee, or receiver for the benefit of creditors, from the date of the filing by the Commission of a notice of claim of said lien in the office of the county clerk of the county in which such property is located. Said lien shall be in addition to any lien accrued by the filing of a tax warrant as provided in this act. Said lien shall be prior, superior and paramount to all other liens, or encumbrances of whatsoever kind or character, attaching to any of said property subsequent to the filing of such notice of claim of lien, except liens for other taxes, in which event said lien shall be coequal, and claims for wages of not more than Two Hundred Fifty Dollars ($250.00) to each claimant, earned within six (6) months of the commencement of any proceeding distributing an employer's assets pursuant to an order of the court under the laws of this state. Said lien shall continue until the amount of contribution, interest, penalty and fees due and owing, and interest subsequently accruing thereon, is paid. In the event of an employer's adjudication in bankruptcy, judicially confirmed extension proposal, or composition, under the Federal Bankruptcy Act of 1898, as amended, contributions then or thereafter due shall be entitled to such priority as is provided in that act for taxes due any state of the United States.
Added by Laws 1980, c. 323, § 3-303, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 19, emerg. eff. June 25, 1981; Laws 1993, c. 219, § 18, eff. Sept. 1, 1993.
§40-3-304. Refunds.
REFUNDS. If not later than three (3) years after the date on which a specific report or return was required to be filed, an employer, who has paid all amounts owing for that specific quarter, may make application for an adjustment in connection with that report or payment, or for a refund thereof because an adjustment cannot be made, and if the Commission shall determine that payment of the contributions, interest, penalty fees or any portion thereof was erroneous, the Commission shall allow such employer to make an adjustment thereof, without interest, in connection with subsequent contribution payments by the employer, or if such adjustment cannot be made, the Commission shall refund from the fund, without interest, the amount erroneously paid. For like cause and within the same period, adjustment or refund may be so made on the Commission's own initiative.
Added by Laws 1980, c. 323, § 3-304, eff. July 1, 1980. Amended by Laws 1992, c. 318, § 5, eff. July 1, 1992; Laws 1993, c. 219, § 19, eff. Sept. 1, 1993.
§40-3-305. Assessments.
ASSESSMENTS.
A. If any employer shall fail to make any report or return as required by the Employment Security Act of 1980, the Oklahoma Employment Security Commission or its duly authorized representative, from any information in the possession of or obtainable by the Commission, may determine the amount of contribution due from such employer, and shall mail a copy of the assessment to the last-known address of the delinquent employer. The assessment so made shall not preclude the Commission or its representative from making field audits of the books and records, wherever located, of the employer and from making further adjustments, corrections or assessments. The assessments provided for herein must be made, and a copy thereof delivered to the employer or mailed to the last-known address of the employer, within three (3) years after the date on which the report or return was required to be filed.
B. Within twenty (20) days after the mailing of the assessment provided for above, the employer may file with the Commission or its representative a written protest to the assessment and a request for an oral hearing de novo to present evidence in support of the protest. The Commission or its representative shall by written notice, advise the employer of the date of the hearing, which shall not be less than ten (10) days from the date of mailing of the written notice. At the discretion of the Commission, this hearing shall be conducted by the Commission, or by a representative appointed by the Commission for this purpose. Pursuant to the hearing, the Commission or its representative shall, as soon as practicable, make a written order setting forth its findings of fact and conclusions of law, and shall send it to the employer and shall in accordance with the order make an assessment of any contribution found to be due and not assessed.
C. If any employer fails to file a written protest within twenty (20) days, as provided by this section, then the assessment shall be final, and no appeal shall be allowed.
D. The employer or the Commission may appeal the order to the district court by filing a petition for review with the clerk of that court within thirty (30) days after the date the order was mailed to all parties. The mailing date shall be specifically stated in the order.
Added by Laws 1980, c. 323, § 3-305, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 20, emerg. eff. June 25, 1981; Laws 1990, c. 333, § 8, emerg. eff. May 31, 1990; Laws 1992, c. 318, § 6, eff. July 1, 1992; Laws 1997, c. 30, § 16, eff. July 1, 1997.
§40-3-306. Jeopardy assessments.
JEOPARDY ASSESSMENTS. A. If the Commission, notwithstanding that a return or report, or that contributions with respect thereto may not yet be due, and whether prior to or after the close of the period when any contribution may be due under the provisions of this act, believes that:
1. An employer intends to depart or remove from the state, or conceal himself or any of his property subject to a lien for the payment of contributions;
2. An employer intends to discontinue business; or
3. An employer intends to do any other act tending to prejudice or render wholly or partially ineffectual proceedings to compute, assess or collect any contribution levied under the provisions of this act,
the Commission shall declare the period for which any contributions may become due to have terminated for such employer, and shall immediately assess the contributions from any information in his possession, notify the employer and demand immediate payment thereof. In the event of any failure or refusal to pay the contributions, by the employer upon the demand of the Commission, the contributions shall immediately become delinquent and the Commission shall proceed to collect the same as in other cases of delinquent contributions.
B. The order of the Commission assessing the contributions may be appealed from as provided in Part 4 of this Article 3, or the employer may furnish to the Commission, under rules prescribed by it, security that he will make any return or report thereafter to be required to be filed with the Commission, and pay the contributions with respect to the period for which such contributions will become due. After security is approved and accepted, and such further and other security with respect to the contributions covered thereby is given as the Commission may, from time to time, find necessary and require, the payment of such contributions shall not be enforced by any proceedings prior to the expiration of the time otherwise allowed for paying such contributions.
C. In cases where the assessment here authorized is made prior to the close of the period for which contributions become due, and in case the employer elects to pay his contribution rather than to file a bond as herein provided for, the employer may pay the Commission the sum assessed, together with additions to contributions imposed by law, and at the time of making such payment shall notify the Commission of his intention, at the close of the period for which such contributions would have become due, to file suit for recovery. Upon receipt of such notice, an account shall be set up showing the amount paid until the termination of thirty (30) days following the close of the period for which such contributions were due, and if within such period, namely, within thirty (30) days following the close of the period for which such contributions were due, the employer files suit for recovery, the account shall be further maintained pending the final determination of such suit, after which it shall be terminated or refund made by the Commission in accordance with the provisions of Section 3-304 of this title.
Added by Laws 1980, c. 323, § 3-306, eff. July 1, 1980. Amended by Laws 1993, c. 219, § 20, eff. Sept. 1, 1993.
§40-3-307. Remittances - Deposit of monies - Returned checks - Bogus check complaint.
A. All remittance, under Section 1-101 et seq. of Title 40 of the Oklahoma Statutes, shall be made payable to the Oklahoma Employment Security Commission, at Oklahoma City, Oklahoma, by bank draft, check, cashier's check, money order, or money, and the Commission shall issue its receipt, for cash or money payment, to the payor. No remittance other than cash shall be in final discharge of liability due the Commission unless and until it shall have been paid in cash. All monies collected shall be deposited with the State Treasurer. There shall be assessed, in addition to any other penalties provided for by law, an administrative service fee of Twenty-five Dollars ($25.00) on each check returned to the Commission or any agent thereof by reason of the refusal of the bank upon which such check was drawn to honor the same.
B. Upon the return of any check by reason of the refusal of the bank upon which such check was drawn to honor the same, the Commission may file a bogus check complaint with the appropriate district attorney who shall refer the complaint to the Bogus Check Restitution Program established by Section 111 of Title 22 of the Oklahoma Statutes. Funds collected through the program after collection of the fee authorized by Section 114 of Title 22 of the Oklahoma Statutes for deposit in the Bogus Check Restitution Program Fund in the county treasury shall be transmitted to the Commission and credited to the liability for which the returned check was drawn and to the administrative service fee provided by this section.
Added by Laws 1990, c. 333, § 9, emerg. eff. May 31, 1990.
§40-3-308. Perjury - Punishment.
Any person, or member of any firm or association, or any officer, agent, or employee of any corporation, who shall knowingly make false answer to any question which may be put to him by the Oklahoma Employment Security Commission, touching the business or property of any such person, firm, association, or corporation, or the valuation thereof, or who shall make or present any false statement filed with said Commission or required to be filed by this title or by any state unemployment compensation law, shall be guilty of perjury, and upon conviction, shall be punished as provided for in Section 4-506 of Title 40 of the Oklahoma Statutes.
Added by Laws 1990, c. 333, § 10, emerg. eff. May 31, 1990.
§40-3-309. Collection of delinquent contributions, penalties or interest.
COLLECTION OF DELINQUENT CONTRIBUTIONS, PENALTIES OR INTEREST. Upon a hearing with notice, the Oklahoma Employment Security Commission shall be entitled to proceed by garnishment to collect any delinquent contribution and to collect any penalty, interest or fees due and owing as a result of the delinquency. Provided, that upon proper application under the procedures outlined herein, the court may issue an order continuing the garnishment for the collection of delinquent contributions, penalties, interest or fees.
Added by Laws 1990, c. 333, § 11, emerg. eff. May 31, 1990. Amended by Laws 1993, c. 219, § 21, eff. Sept. 1, 1993.
§40-3-310. Waiver of penalty or interest.
A. Any penalty or interest, or any portion thereof, assessed because an employer or employee fails to file a report or remit payment as required by Section 1-101 et seq. of Title 40 of the Oklahoma Statutes may be waived by the Oklahoma Employment Security Commission provided the failure of the employer or employee to file a report or remit payment:
1. Is satisfactorily explained to the Commission;
2. Has resulted from a mistake by the employer or employee of either the law or the facts subjecting the employer or employee to file the report or remit payment; or
3. Results from insolvency.
B. Provided, no waiver of penalty or interest assessed for failure to file a report or remit payment as required by this act shall be granted unless the request for waiver is filed with the Commission within a three-year period from the date the penalty or interest was assessed or accrued.
C. Any penalty and interest assessed prior to April 1, 1995, against an employer which is a federally recognized Indian tribe or nation, shall be waived by the Commission upon full payment of all outstanding contributions owed by any such Indian tribe or nation pursuant to the Employment Security Act of 1980, provided that full payment is received by the Commission prior to April 1, 1995. Any such Indian tribe or nation who has fully complied with the provisions of this subsection shall be eligible to elect coverage and thereafter be subject to termination of any such election of such coverage pursuant to Section 3-203 of this title.
Added by Laws 1992, c. 318, § 12, eff. July 1, 1992. Renumbered from § 5-109 of this title by Laws 1993, c. 219, § 36, eff. Sept. 1, 1993. Amended by Laws 1994, c. 195, § 5, emerg. eff. May 16, 1994.
§40-3-401. Appeals to district court.
APPEALS TO DISTRICT COURT.
After the administrative appeal hearing process provided for in Article III of this title is complete, any order, ruling or finding that directly affects an employer or the Oklahoma Employment Security Commission may be appealed by the affected entity to the district court of the county of residence, or principal place of business, of the employer; provided, however, if the employer is a nonresident of this state, then to the district court of Oklahoma County.
Added by Laws 1980, c. 323, § 3-401, eff. July 1, 1980. Amended by Laws 2002, c. 452, § 23, eff. Nov. 1, 2002.
§40-3-402. Repealed by Laws 1998, c. 161, § 15, eff. July 1, 1998.
§40-3-403. Petition for review and transcript of Commission proceedings.
PETITION FOR REVIEW AND TRANSCRIPT OF COMMISSION PROCEEDINGS.
Within thirty (30) days after the date of mailing of the order, ruling, or finding complained of, the party desiring to appeal shall file in the office of the clerk of the district court of the county that has the proper jurisdiction, a Petition for Review specifying the grounds upon which such appeal is based. The appealing party shall serve a file-stamped copy of the Petition for Review on the opposing party or its attorney and the designated hearing officer of the Commission before whom the original hearing was held. The hearing officer of the Commission shall then cause a certified transcript of the hearing to be made which shall consist of all testimony of the parties, all documentary evidence and other evidence introduced at the hearing, and all decisions, judgments, or orders rendered as a result of the hearing. The hearing officer shall then cause the certified transcript to be filed in the appropriate district court within sixty (60) days of receipt of the Petition for Review. Copies of the transcript shall be mailed by the hearing officer to the Commission's attorney and the employer or the employer's attorney.
Added by Laws 1980, c. 323, § 3-403, eff. July 1, 1980. Amended by Laws 1998, c. 161, § 12, eff. July 1, 1998.
§40-3-404. Commission's conclusions of facts conclusive.
COMMISSION'S CONCLUSIONS OF FACTS CONCLUSIVE. In any judicial review under this part the findings of the Commission, or its duly authorized representative, as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.
Added by Laws 1980, c. 323, § 3-404, eff. July 1, 1980.
§40-3-405. Deposit of assessment required.
DEPOSIT OF ASSESSMENT REQUIRED.
As a condition precedent to the right of an employer to prosecute an appeal, and as a jurisdictional prerequisite of the district court to entertain the appeal, it is specifically provided that, if the appeal be from an order, judgment, finding, or ruling of the Oklahoma Employment Security Commission or its duly authorized representative, the employer shall pay to the Commission all amounts owing in the employer's account. Any amounts so paid shall, pending the final determination of the appeal, be reflected by the Commission in the employer's account, and if, upon a final determination of the appeal the order of the Commission is reversed or modified and it is determined that the contribution or part thereof was erroneously assessed, or the contributions, penalties, interest or fees should not be owed to the Commission, the amount paid by the employer shall be refunded to the employer by the Commission.
Added by Laws 1980, c. 323, § 3-405, eff. July 1, 1980. Amended by Laws 1993, c. 219, § 22, eff. Sept. 1, 1993; Laws 2002, c. 452, § 24, eff. Nov. 1, 2002.
§40-3-406. Bond in lieu of cash deposit.
BOND IN LIEU OF CASH DEPOSIT. In lieu of the cash payment provided for in Section 3-405 of this title, the employer may file with the Commission a surety bond issued by an insurance company that is licensed by the Oklahoma Insurance Department to issue surety bonds in this state. The surety bond must be issued in an amount that is double the amount of the contribution, penalties, interest and fees assessed or owing, and include the conditions that the employer will faithfully and diligently prosecute the appeal to a final determination, and, in the event the order, judgment, ruling or finding of the Commission or its duly authorized representative be affirmed on appeal, will pay the contributions, interest, penalty, costs and fees assessed against, or owing by, the employer.
Added by Laws 1980, c. 323, § 3-406, eff. July 1, 1980. Amended by Laws 1992, c. 318, § 7, eff. July 1, 1992; Laws 1993, c. 219, § 23, eff. Sept. 1, 1993.
§40-3-407. Repealed by Laws 2005, c. 182, § 15, eff. Nov. 1, 2005.
§40-3-408. Part construed to provide legal remedy.
PART CONSTRUED TO PROVIDE LEGAL REMEDY. This part shall be construed to provide a legal remedy by action at law in cases where any contribution, or the method of collection or enforcement thereof or any order, ruling, finding or judgment of the Commission or its duly authorized representative, is complained of or is sought to be enjoined in any action in any court of this state or the United States of America.
Added by Laws 1980, c. 323, § 3-408, eff. July 1, 1980.
§40-3-501. Commission to issue warrants.
COMMISSION TO ISSUE WARRANTS. If any contribution imposed by the provisions of this act, or any portion of said contribution, be not paid before the same becomes delinquent, the Commission may immediately issue a warrant under its official seal, directed to the sheriff of any county of the state, commanding him to levy upon and sell any real or personal property of any delinquent employer found within his county for the payment of the delinquent contribution, interest, penalty and fees and the cost of executing the warrant, and to return such warrant to the Commission, and to pay it any moneys collected by virtue thereof, by a time to be therein specified, not more than sixty (60) days from the date of the warrant.
Added by Laws 1980, c. 323, § 3-501, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 21, emerg. eff. June 25, 1981; Laws 1993, c. 219, § 24, eff. Sept. 1, 1993.
§40-3-502. Filing warrant with county clerk.
FILING WARRANT WITH COUNTY CLERK. The Commission may also file a copy of its warrant with the county clerk of the county or counties in which the employer has property and thereupon the county clerk shall index the warrant in the same manner as judgments using the name of the delinquent employer named in the warrant, a short name for the contribution, or tax imposed, and the amount of the contributions, interest, penalty and fees for which the warrant was issued, and the date upon which the copy was filed, and shall index the warrant against the real property described therein, if any is described. If the county clerk charges a fee for the filing of the warrant, the Commission may add the amount of the fee to the indebtedness owing by the delinquent employer named in the warrant.
Added by Laws 1980, c. 323, § 3-502, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 22, emerg. eff. June 25, 1981; Laws 1993, c. 219, § 25, eff. Sept. 1, 1993; Laws 1995, c. 340, § 19, eff. July 1, 1995.
§40-3-503. Filed warrant is lien.
FILED WARRANT IS LIEN. The filing of said warrant in the office of the county clerk of said county shall constitute and be evidence and notice of the state's lien upon the title to any interest in any real or personal property of the delinquent employer against whom such warrant is issued. Such lien shall be in addition to any and all other liens existing in favor of the state to secure the payment of such unpaid contribution, interest, penalty, fees and costs, and such lien shall be paramount and superior to all other liens of whatsoever kind or character, attaching to any of said property subsequent to the date of such recording and shall be in addition to any other lien provided for in this act. This lien on personal property shall be permanent and continuing without any requirement for executions under Section 735 of Title 12 of the Oklahoma Statutes or any other similar statute. This lien on personal property of the State of Oklahoma shall continue until the amount of the tax, contribution, penalty, interest and fees are paid. This lien shall continue on real property until released by payment or for a maximum of ten (10) years after the date of its filing.
Added by Laws 1980, c. 323, § 3-503, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 23, emerg. eff. June 25, 1981; Laws 1982, c. 81, § 1; Laws 1993, c. 219, § 26, eff. Sept. 1, 1993.
§40-3-504. Sheriff to execute warrant in same manner as judgment.
SHERIFF TO EXECUTE WARRANT IN SAME MANNER AS JUDGMENT. Upon receiving such warrant the sheriff shall proceed to execute said warrant in all respects with like effect and in the same manner prescribed by law in respect to executions against property upon judgment of the court of record; and such sheriff shall execute and deliver to the purchaser a bill of sale or deed, as the case may be. Any purchaser, other than the State of Oklahoma, shall be entitled, upon application to the court having jurisdiction of the property, to have confirmation (the procedure for which shall be the same as is now provided for the confirmation of a sale under execution) of such sale prior to the issuance of a bill of sale or deed. The State of Oklahoma shall be authorized to make bids at any such sale to the amount of contributions, penalties, interest, costs and fees accrued. In the event such bid is successful, the sheriff shall issue a proper muniment of title to the Commission, which said Commission shall hold such title for the use and benefit of the State of Oklahoma; and any delinquent employer, or transferee of such delinquent employer, shall have the right, at any time within one (1) year from the date of such sale, to redeem such property, upon the payment of all contributions, penalties, interest, costs and fees accrued to the date of redemption. Such applicant shall not be entitled to a credit upon such contributions, penalties, interest, costs and fees, by reason of any revenue that might have accrued to the State of Oklahoma or other purchaser under sale prior to such redemption. After the expiration of the period of redemption herein provided, the State of Oklahoma may sell such property at public auction, upon giving thirty (30) days' notice, published in a newspaper of general circulation in the county where such property is located, to the highest and best bidder for cash; and upon a sale had thereof, or when a redemption is made, the Commission for and on behalf of the State of Oklahoma shall issue its bill of sale or quit claim deed to the successful bidder or to the redemptioner. The sheriff shall be entitled to the same fee for his services in executing the warrant, as he would be entitled to receive if he were executing an execution issued by the court clerk of said county upon a judgment of a court of record.
Added by Laws 1980, c. 323, § 3-504, eff. July 1, 1980. Amended by Laws 1993, c. 219, § 27, eff. Sept. 1, 1993.
§40-3-505. Failure of sheriff to execute warrant.
FAILURE OF SHERIFF TO EXECUTE WARRANT. If any sheriff shall refuse or neglect to levy upon and sell any real or personal property of any delinquent employer as directed by any warrant issued by the Commission, or shall refuse or neglect, on demand, to pay over to the Commission, its representatives or attorneys, all moneys by him collected or received under any warrant issued by the said Commission, at any time after collecting or receiving the same, such sheriff or other officer shall, upon motion of the Commission in court, and after thirty (30) days' notice thereof, in writing, be amerced in the amount for which any such warrant was issued, together with all penalties and costs and with an additional penalty of ten percent (10%) thereon, to and for the use of the State of Oklahoma. Every surety of any sheriff or officer shall be made a party to the judgment rendered as aforesaid against the sheriff or other officer.
Added by Laws 1980, c. 323, § 3-505, eff. July 1, 1980.
§40-3-506. State may be made party defendant.
STATE MAY BE MADE PARTY DEFENDANT. In any action involving the title to real estate, or the ownership or right to possession of personal property, the State of Oklahoma may be made a party defendant for the purpose of determining any lien claimed by it upon the property involved therein; and in any such action, service of summons upon the Commission or any member thereof shall be a sufficient service and binding upon the State of Oklahoma.
Added by Laws 1980, c. 323, § 3-506, eff. July 1, 1980.
§40-3-507. Injunctions.
INJUNCTIONS. When any reports required under this act have not been filed or may be insufficient to furnish all the information required by the Commission, or when the contributions imposed by this act have not been paid, the Commission may institute, in the name of the State of Oklahoma, upon the relation of the Commission, any necessary action or proceeding to enjoin such persons, firm, association or corporation from continuing operations until such reports have been filed or contributions paid as required, and in all proper cases injunction shall be issued without a bond being required from the state.
Added by Laws 1980, c. 323, § 3-507, eff. July 1, 1980.
§40-3-508. Appointment of receiver.
APPOINTMENT OF RECEIVER. Upon a proper showing in any action under Section 3-507 that contributions are in danger of being lost or rendered uncollectible by reason of the mismanagement, dissipation or concealment of the property by the taxpayer and a request for the appointment of a receiver for the management of the taxpayer is made, a receiver shall be appointed.
Added by Laws 1980, c. 323, § 3-508, eff. July 1, 1980.
§40-3-509. Levy on bank accounts.
LEVY ON BANK ACCOUNTS. A. As used in Part 5 of Article 3 of the Employment Security Act of 1980:
1. "Bank" means any state bank or banking association, national bank or banking association, savings and loan company, credit union, or any other financial institution;
2. "Bank account" means any checking or savings account the tax debtor has with any bank; and
3. "Tax debtor" means any person, partnership, corporation, or legal entity of any kind that owes the Oklahoma Employment Security Commission any amount for delinquent state unemployment taxes, interest, penalty, fees, or surcharge.
B. If any tax debtor shall fail to pay his or her indebtedness to the Oklahoma Employment Security Commission after the tax debtor has been notified of the amount due and demand for payment has been made, it shall be lawful for the Oklahoma Employment Security Commission to collect the amount owed by levy upon any bank account of the tax debtor.
C. To levy upon a tax debtor's bank account, the Oklahoma Employment Security Commission must serve a Notice of Levy on the bank in which the tax debtor has an account, along with the tax warrants covering all calendar quarters in which the tax debtor owes unemployment taxes, interest, penalty, fees, or surcharge.
D. Service of the Notice of Levy and tax warrants shall be made on the bank in the same manner as provided in Section 2004 of Title 12 of the Oklahoma Statutes for service of process in civil actions.
E. Upon receiving the Notice of Levy and any tax warrants issued against the tax debtor, the bank shall deliver all of the tax debtor's interest in the money in the tax debtor's bank account at the time of the service of the levy, subject to the banker's lien or right of setoff, or any other priority claim of the bank, up to the amount of indebtedness indicated on the tax warrants plus accrued interest pursuant to subsection A of Section 3-301 of Title 40 of the Oklahoma Statutes and any fees for service of process, to the representative of the Commission indicated on the Notice of Levy. The delivery of this money shall occur within ten (10) days of the date of service of the Notice of Levy.
F. If there is no money in the tax debtor's bank account at the time the Notice of Levy is served, or if the bank account has been closed, an officer of the bank on which the Notice of Levy is served shall make a statement to that effect on the Notice of Levy. The statement must be notarized and returned to the representative of the Oklahoma Employment Security Commission named in the Notice of Levy.
G. The Sheriff's Department that serves the Notice of Levy on the bank shall be entitled to a service fee of Fifty Dollars ($50.00) that is to be paid by the Oklahoma Employment Security Commission and added to the tax debtor's indebtedness as a fee in the latest calendar quarter for which the tax debtor has any type of indebtedness.
Added by Laws 1992, c. 318, § 9, eff. July 1, 1992.
§40-3-510. Enforcement of bank levy.
ENFORCEMENT OF BANK LEVY. A. Any bank that fails or refuses to surrender any money or rights to money in a bank account subject to levy, upon being served with a Notice of Levy and supporting tax warrants of the Oklahoma Employment Security Commission, shall be liable to the Oklahoma Employment Security Commission in a sum equal to the amount of money or rights to money not so surrendered, but not exceeding the amount of the tax debtor's indebtedness for the collection of which the levy has been made, together with accrued interest pursuant to subsection A of Section 3-301 of this title, and the cost of service of the Notice of Levy. Any amount recovered under this subsection shall be credited against the liability for taxes, interest, penalty, fees, and surcharge, for the collection of which the levy was made.
B. Any bank in possession of money or rights to money subject to levy, upon which a levy has been made, that surrenders such money or rights to money to the Oklahoma Employment Security Commission shall be discharged from any obligation or liability to the tax debtor and any other person or entity with respect to such money or rights to money arising from the surrender or payment.
Added by Laws 1992, c. 318, § 10, eff. July 1, 1992.
§40-3-601. Establishment of unemployment compensation fund.
ESTABLISHMENT OF UNEMPLOYMENT COMPENSATION FUND. There is hereby established as a special fund, separate and apart from all public moneys or funds of this state, the Unemployment Compensation Fund, which shall be administered by the Commission exclusively for the purpose of this act. This fund shall consist of (1) all contributions collected pursuant to this act, together with any interest thereon collected pursuant to this act; (2) all penalties collected pursuant to the provisions of this act; (3) interest earned upon any moneys in the fund; (4) any property or securities acquired through the use of moneys belonging to the fund; (5) all earnings of such property or securities; and (6) all other moneys received for the fund from any other source. All moneys in the fund shall be mingled and undivided.
Added by Laws 1980, c. 323, § 3-601, eff. July 1, 1980.
§40-3-602. State Treasurer custodian of fund.
STATE TREASURER CUSTODIAN OF FUND. The State Treasurer shall be ex officio the treasurer and custodian of the fund who shall administer such fund in accordance with the directions of the Commission and shall issue his warrants upon it in accordance with such rules as the Commission shall prescribe.
Added by Laws 1980, c. 323, § 3-602, eff. July 1, 1980. Amended by Laws 1993, c. 219, § 28, eff. Sept. 1, 1993.
§40-3-603. State Treasurer to maintain three accounts.
STATE TREASURER TO MAINTAIN THREE ACCOUNTS. The State Treasurer shall maintain within the Fund three separate accounts: (1) a clearing account, (2) an unemployment trust fund account, and (3) a benefit account.
Added by Laws 1980, c. 323, § 3-603, eff. July 1, 1980.
§40-3-604. Clearing account.
CLEARING ACCOUNT. All moneys payable to the fund, upon receipt thereof by the Commission, shall be forwarded to the Treasurer who shall immediately deposit them in the clearing account. Refunds payable pursuant to this act shall be payable from the clearing account upon warrants issued by the Treasurer under the direction of the Commission.
Added by Laws 1980, c. 323, § 3-604, eff. July 1, 1980.
§40-3-605. Unemployment trust fund.
UNEMPLOYMENT TRUST FUND. After clearance thereof, all other moneys in the clearing account shall be immediately deposited with the Secretary of the Treasury of the United States of America to the credit of the account of this state in the unemployment trust fund, established and maintained pursuant to Section 904 of the Social Security Act, as amended, any provisions of law in this state relating to the deposit, administration, release or disbursement of moneys in the possession or custody of this state to the contrary notwithstanding.
Added by Laws 1980, c. 323, § 3-605, eff. July 1, 1980.
§40-3-606. Benefit account.
BENEFIT ACCOUNT. The benefit account shall consist of all moneys requisitioned from this state's account in the unemployment trust fund in the United States Treasury. Moneys in the clearing and benefit account may be deposited in any depository bank in which general funds of the state may be deposited, but no public deposit insurance charge or premium shall be paid out of the fund. Moneys in the clearing and benefit accounts shall not be commingled with other state funds, but shall be maintained in separate accounts on the books of the depository bank. Such moneys shall be secured by said depository bank by collateral in the full amount of funds on deposit. Such security shall consist of (1) United States Government obligations, direct or guaranteed, and (2) direct obligations of the State of Oklahoma. Such collateral security shall be pledged at not to exceed the face value of the obligation and shall be kept separate and distinct from any collateral security pledged to secure other funds of the state. The State Treasurer shall be liable on his official bond for the faithful performance of his duties in connection with the unemployment compensation fund. Such liability on the official bond shall be effective immediately upon the enactment of this provision, and such liability shall exist in addition to any liability upon any separate bond existent on the effective date of this provision, or which may be given in the future. All sums recovered for losses sustained by the fund shall be deposited therein.
Added by Laws 1980, c. 323, § 3-606, eff. July 1, 1980.
§40-3-607. Requisitions from unemployment trust account.
REQUISITIONS FROM UNEMPLOYMENT TRUST ACCOUNT. Moneys requisitioned from this state's account in the unemployment trust fund shall be used exclusively for the payment of benefits. The Commission shall, from time to time, requisition from the unemployment trust fund such amounts, not exceeding the amounts standing to this state's account therein, as it deems necessary for the payment of such benefits for a reasonable future period. Upon receipt thereof such moneys shall be deposited in the benefit account.
Added by Laws 1980, c. 323, § 3-607, eff. July 1, 1980.
§40-3-608. Expenditures not subject to specific appropriation requirements.
EXPENDITURES NOT SUBJECT TO SPECIFIC APPROPRIATION REQUIREMENTS. (1) Expenditures of such moneys in the benefit account and refunds from the clearing account shall not be subject to any provisions of law requiring specific appropriations or other formal release by state officers of money in their custody. All warrants issued for the payment of benefits and refunds shall bear the signature of a representative of the Commission duly authorized for that purpose.
(2) Any balance of moneys requisitioned from the unemployment trust fund which remains unclaimed or unpaid in the benefit account after the expiration of the period for which such sums were requisitioned shall either be deducted from estimates for, and may be utilized for the payment of, benefits during succeeding periods, or, in the discretion of the Commission, shall be redeposited with the Secretary of the Treasury of the United States of America, to the credit of this state's account in the unemployment trust fund.
Added by Laws 1980, c. 323, § 3-608, eff. July 1, 1980.
§40-3-609. Discontinuance of unemployment trust fund.
DISCONTINUANCE OF UNEMPLOYMENT TRUST FUND. The provisions of this part to the extent that they relate to the unemployment trust fund in the Treasury of the United States, shall be operative only so long as such unemployment trust fund continues to exist and so long as the Secretary of the Treasury of the United States of America continues to maintain for this state a separate book account of all funds deposited therein by this state for benefit purposes, together with this state's proportionate share of the earnings of such unemployment trust fund, from which no other state is permitted to make withdrawals.
Added by Laws 1980, c. 323, § 3-609, eff. July 1, 1980.
§40-3-610. Management of funds of unemployment trust fund.
MANAGEMENT OF FUNDS OF UNEMPLOYMENT TRUST FUND. If and when the unemployment trust fund in the Treasury of the United States, ceases to exist, or such separate book account of the unemployment trust fund is no longer maintained, all moneys belonging to the unemployment compensation fund of this state shall be administered by the Commission as a trust fund for the purpose of paying benefits under this act, and the Commission shall have authority to hold, invest, transfer, sell, deposit, and release such moneys, and any properties, securities, or earnings acquired as an incident to such administration; provided, that such moneys shall be invested in the following readily marketable classes of securities: Bonds or other interest-bearing obligations of the United States of America or guaranteed both as to interest and principal by the United States; provided further, that such investment shall at all times be so made that all the assets of the fund shall always be readily convertible into cash when needed for the payment of benefits. The Treasurer shall dispose of securities or other properties belonging to the unemployment compensation fund only under the direction of the Commission.
Added by Laws 1980, c. 323, § 3-610, eff. July 1, 1980.
§40-3-701. Applicability.
APPLICABILITY. The provisions of this part shall apply to the financing of benefits to employees of the state and political subdivisions thereof and their instrumentalities.
Added by Laws 1980, c. 323, § 3-701, eff. July 1, 1980.
§40-3-702. Payments by the state subdivisions and instrumentalities in lieu of contributions.
PAYMENTS BY THE STATE SUBDIVISIONS AND INSTRUMENTALITIES IN LIEU OF CONTRIBUTIONS. In lieu of contributions required of employers under the Employment Security Act of 1980, as provided by this act, the State of Oklahoma and its instrumentalities shall pay each quarter beginning after March 31, 1978, including any political subdivision and its instrumentalities after December 31, 1977, one percent (1%) of taxable wages, as defined in this act, paid to employees covered by this act. Such payments made in lieu of contributions shall be paid on or before the last day of the month following the calendar quarter to be reported and shall be paid into the Unemployment Compensation Fund.
Added by Laws 1980, c. 323, § 3-702, eff. July 1, 1980. Amended by Laws 1994, c. 195, § 6, emerg. eff. May 16, 1994.
§40-3-703. Benefits and extended benefits paid from unemployment security fund.
BENEFITS AND EXTENDED BENEFITS PAID FROM UNEMPLOYMENT SECURITY FUND. All regular benefits and extended benefits, as defined by this act, paid to individuals who were employees of the state and political subdivisions and their instrumentalities and which were based on wages paid by the state and political subdivisions and their instrumentalities shall be paid from the benefit account of the Unemployment Compensation Fund.
Added by Laws 1980, c. 323, § 3-703, eff. July 1, 1980.
§40-3-704. Benefits based on wages paid both by the state and other employers.
BENEFITS BASED ON WAGES PAID BOTH BY THE STATE AND OTHER EMPLOYERS. If benefits paid an individual are based on wages paid by both the state and one or more other employers subject to this act, the amount to be included as state benefit payments shall bear the same ratio to the total benefits paid to the individual as the base period wages as defined by this act, paid to the individual by the state bear to the total amount of base period wages paid to the individual by all his base period employers, as defined by this act.
Added by Laws 1980, c. 323, § 3-704, eff. July 1, 1980.
§40-3-705. Election to become liable for reimbursement payments.
ELECTION TO BECOME LIABLE FOR REIMBURSEMENT PAYMENTS. (1) Any governmental organization, as described in Section 1-208(7) and (8) including their instrumentalities, which is or becomes subject to this act after December 31, 1977, may elect to become liable for reimbursement payments in lieu of contributions in the same manner and subject to the same provisions that apply to reimbursing nonprofit organizations as provided in Part 8 of Article 3, including formation of group accounts, and the proportionate allocation of benefit costs, applicable to reimbursing nonprofit organizations as provided in Part 8 of Article 3, except that one hundred percent (100%) of the extended benefits attributable to governmental entities will be reimbursed after January 1, 1979. In lieu of making reimbursement payments in the manner provided in Part 8 of Article 3, a governmental organization authorized to raise revenue as provided in Article X, Section 28, of the Oklahoma Constitution may elect by resolution filed with the Commission to make reimbursement payments after receipt of the notice of the full amount due that is equal to the regular benefits and extended benefits paid by the Commission during each quarter after January 1, 1978, and is attributable to service in the employ of the governmental organization.
(2) If such amount is not paid into the unemployment compensation fund by such governmental organization by the due date, the Commission may file in the office of the court clerk of the county in which the situs of the governmental organization is located a certified copy of its notice of the full amount due, regardless of any minimum, and including any interest or penalty that may be assessed.
(3) The amount so certified shall be entered on the judgment docket of the district court and shall have the same force and be subject to the same law as judgments of the district court and paid in the manner provided for payment of judgments against subdivisions of government as set forth in Sections 365.1 through 365.6 of Title 62 of the Oklahoma Statutes. The Commission is hereby authorized to sell and assign to the State Treasurer any judgments against such governmental organization as herein provided.
Added by Laws 1980, c. 323, § 3-705, eff. July 1, 1980.
§40-3-706. Benefits that do not apply in the computation of state experience factor.
BENEFITS THAT DO NOT APPLY IN THE COMPUTATION OF STATE EXPERIENCE FACTOR. Benefits paid to former employees of governmental entities, except for benefits paid to such employees based upon wages paid by other than governmental entities, shall not be considered as benefits for the purpose of Section 3-108, nor shall any wages of governmental entities be used as benefit wages for the purpose of Section 3-108.
Added by Laws 1980, c. 323, § 3-706, eff. July 1, 1980.
§40-3-707. State pledge.
STATE PLEDGE. The State of Oklahoma recognizes its obligation under this act and hereby pledges the faith of the state that funds which are to be dispersed by the state to any organization, instrumentality of the state or its political subdivisions will be available to insure payments required under this act.
Added by Laws 1980, c. 323, § 3-707, eff. July 1, 1980.
§40-3-708. Delinquent payments.
DELINQUENT PAYMENTS. If the Commission finds that any organization, instrumentality of the state or its political subdivisions, including public trusts, has become delinquent with payments required under the act and following the Commission's written request for such payment, has for sixty (60) days or more thereafter refused or failed to pay amounts due and required under this act, the Commission shall notify the State Budget Director of such delinquency and total amount due. The Budget Director shall authorize payment of such amounts from any funds deposited with the State Treasurer, which would otherwise be due from the state to such organization, instrumentality or political subdivision.
Added by Laws 1980, c. 323, § 3-708, eff. July 1, 1980.
§40-3-801. Applicability.
APPLICABILITY.
Benefits paid to employees of nonprofit organizations shall be financed in accordance with the provisions of this part. For the purpose of this part, a nonprofit organization is an organization or group of organizations defined in paragraph (4) of Section 1-210 of this title.
Added by Laws 1980, c. 323, § 3-801, eff. July 1, 1980. Amended by Laws 1997, c. 30, § 17, eff. July 1, 1997.
§40-3-802. Contributions.
CONTRIBUTIONS. Any such nonprofit organization which is, or becomes, subject to this act, on or after January 1, 1972, shall report and pay contributions to the Commission in the same time, manner and amounts as required of nongovernmental employers for profit subject to this act subject, except as herein provided, to the same rights, remedies, obligations and penalties as a nongovernmental employer for profit.
Added by Laws 1980, c. 323, § 3-802, eff. July 1, 1980.
§40-3-803. Election to make payments in lieu of contributions.
ELECTION TO MAKE PAYMENTS IN LIEU OF CONTRIBUTIONS. A nonprofit organization may elect, in accordance with this section, in lieu of contributions, to pay to the Commission for the unemployment compensation fund an amount equal to the amount of regular benefits and of one-half (1/2) of the extended benefits paid in accordance with this act that is attributable to service in the employ of such nonprofit organization for weeks of unemployment which begin during the effective period of such election, regardless of reason for separation.
Added by Laws 1980, c. 323, § 3-803, eff. July 1, 1980.
§40-3-804. Period of election - Organizations subject to act after January 1, 1972.
PERIOD OF ELECTION - ORGANIZATIONS SUBJECT TO ACT AFTER JANUARY 1, 1972. Any nonprofit organization which becomes subject to this act on or after January 1, 1972, may elect to become liable for payments in lieu of contributions for a period of not less than the remainder of the calendar year in which subjectivity occurs and the next two (2) succeeding calendar years by filing a written notice of its election with the Commission not later than thirty (30) days immediately following the date of the determination of such subjectivity.
Added by Laws 1980, c. 323, § 3-804, eff. July 1, 1980.
§40-3-805. Written notice of termination of election required.
WRITTEN NOTICE OF TERMINATION OF ELECTION REQUIRED. Any nonprofit organization which makes an election in accordance with Section 3-804 of this act will continue to be liable for payments in lieu of contributions until it files with the Commission a written notice terminating its election not later than the last day of January immediately following the beginning of the calendar year for which such termination shall first be effective. After such termination such employer shall be treated as a newly subject nongovernmental employer for profit under the Oklahoma Employment Security Act for purposes of determining such organization's contribution rate.
Added by Laws 1980, c. 323, § 3-805, eff. July 1, 1980.
§40-3-806. Payment of in-lieu contributions.
PAYMENT OF IN-LIEU CONTRIBUTIONS. A. At the end of each calendar quarter the Oklahoma Employment Security Commission shall notify in writing each nonprofit organization, or the agent of a group of such organizations, which has elected to make payments in lieu of contributions, the amount, if any, equal to the full amount of regular benefits plus one-half (1/2) of the amount of extended benefits paid by the Commission during such quarter that is attributable to service in the employ of such organization or the members of a group of such organizations. Such full amount shall include all amounts so paid to its former employees as benefits, including amounts paid in error. Such notification shall be deemed and treated as an assessment of contributions and the payment of the amount owing shall be collected as contributions, interest, penalty and fees, if any, are collected, in accordance with the provisions of this act. The employer, or group of employers, shall have the rights and remedies provided by this act with respect to assessments of contributions, including the right of protest, hearing and appeal. If no protest is filed or if filed and confirmed by the Commission or its authorized representatives, said assessment shall be immediately due and payable and shall bear interest after forty-five (45) days at the rate of one percent (1%) per month until paid. If any nonprofit organization or group of organizations fails or refuses to pay said assessment after same has become delinquent within forty-five (45) days after written request has been mailed to such organization or the agent of such group by the Commission or its representative, a penalty of five percent (5%) of the amount due shall be added thereto, collected and paid. In the case of group accounts, assessments and penalty and interest provided in this subsection may be prorated in accordance with Section 3-809. All collections made shall be deposited in the Unemployment Compensation Fund.
B. Such electing organization, or group of organizations, shall file reports of wages paid, in the same time and manner as required of said nongovernmental employers for profit. If any such electing organization, or group of organizations, fails or refuses to file said wage report within fifteen (15) days after written notice a penalty of Ten Dollars ($10.00) for each day until such report is filed with a maximum of One Hundred Dollars ($100.00) is hereby imposed against such organization or group and shall be collected and paid.
C. Payments made by any nonprofit organization under the provisions of this section shall not be deducted or deductible, in whole or in part, from the remuneration of individuals in the employ of the organization.
Added by Laws 1980, c. 323, § 3-806, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 24, emerg. eff. June 25, 1981; Laws 1990, c. 333, § 12, emerg. eff. May 31, 1990; Laws 1993, c. 219, § 29, eff. Sept. 1, 1993.
§40-3-807. Payment of in-lieu contributions - Benefits based on wages paid by more than one employer.
PAYMENT OF IN-LIEU CONTRIBUTIONS - BENEFITS BASED ON WAGES PAID BY MORE THAN ONE EMPLOYER. (1) Each employer that is liable for payments in lieu of contributions shall pay to the Commission for the fund the amount of regular benefits plus the amount of one-half (1/2) of extended benefits paid that are attributable to service in the employ of such employer. If benefits paid to an individual are based on wages paid by more than one employer under this act and one or more of such employers are liable for payments in lieu of contributions, the amount payable to the fund by each employer that is liable for such payments shall be determined in accordance with the provisions of subsection (2) or subsection (3) of this section.
(2) If benefits paid to an individual are based on wages paid by one or more employers that are liable for contributions under this act, the amount of benefits payable by each employer that is liable for payments in lieu of contributions shall be an amount which bears the same ratio to the total benefits paid to the individual as the total base period wages, as defined by this act, paid to the individual by such employer bear to the total base period wages paid to the individual by all of his base period employers, as defined by this act.
(3) If benefits paid to an individual are based on wages paid by two or more employers that are liable for payments in lieu of contributions, the amount of benefits payable by each such employer shall be an amount which bears the same ratio to the total benefits paid to the individual as the total base period wages paid to the individual by such employer bear to the total base period wages paid to the individual by all of his base period employers.
(4) Amounts paid that are to be reimbursed under this section shall not be considered as benefits for the purposes of this act, nor shall any benefit wages be created under this act by such payments.
Added by Laws 1980, c. 323, § 3-807, eff. July 1, 1980.
§40-3-808. Election to become reimbursing employer.
ELECTION TO BECOME REIMBURSING EMPLOYER. Any nonprofit organization which had been liable for paying contributions for a period subsequent to January 1, 1972, may change to a reimbursable basis by filing with the Commission not later than the last day of January immediately following the beginning of any calendar year a written notice of election to become liable for payments in lieu of contributions. Such election shall not be terminable by the organization for that and the next calendar year.
Added by Laws 1980, c. 323, § 3-808, eff. July 1, 1980.
§40-3-809. Group accounts.
GROUP ACCOUNTS. Two or more employers that have elected to become liable for payments in lieu of contributions, in accordance with the provisions of this Part, may, within the same period of time required for the filing of such election, file a joint application to the Commission for the establishment of a group account for the purpose of sharing the cost of benefits paid that are attributable to service in the employ of such employers. Each such application shall identify and authorize a group representative to act as the group's agent for the purposes of this Part. Upon its approval of the application, the Commission shall establish a group account for such group of employers. Such group account shall remain in effect for not less than two (2) full calendar years and thereafter until terminated at the discretion of the Commission or upon application by the group. Members of a group may prorate the cost of reimbursement of benefits paid from the fund by any method upon which the members of the group may mutually agree. Notwithstanding this pro rata provision, in the event such group is delinquent and it is necessary to enforce the payment by legal means, each member of the group shall be individually liable for that portion of the benefits paid from the fund attributable to wages paid by the member in the same manner as if no group account had been established. The Commission shall prescribe such rules as it deems necessary with respect to applications for establishment, maintenance and termination of group accounts that are authorized by this section, for addition of new members to, and withdrawal of active members from, such accounts, and for the determination of the amounts that are payable under this section by members of the group and the time and manner of such payments.
Added by Laws 1980, c. 323, § 3-809, eff. July 1, 1980. Amended by Laws 1993, c. 219, § 30, eff. Sept. 1, 1993.
§40-3-810. Commission to provide notice of determinations.
COMMISSION TO PROVIDE NOTICE OF DETERMINATIONS. The Commission, in accordance with such rules as it may prescribe, shall notify each nonprofit organization, or group of organizations, of any determination which it may make of its status as an employer and of the effective date of any election which it makes and of any termination of such election. Such determinations shall be subject to reconsideration, appeal and review in accordance with the provisions of this act.
Added by Laws 1980, c. 323, § 3-810, eff. July 1, 1980. Amended by Laws 1993, c. 219, § 31, eff. Sept. 1, 1993.
§40-4-101. Applicability.
APPLICABILITY. This part shall apply to the Oklahoma Employment Security Commission.
Added by Laws 1980, c. 323, § 4-101, emerg. eff. June 13, 1980.
§40-4-102. Composition.
COMPOSITION. There is hereby created a Commission to be known as the Oklahoma Employment Security Commission. The Commission shall consist of five (5) members, appointed by the Governor, by and with the consent of the Oklahoma State Senate, 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. New appointments shall be made within ninety (90) days after any vacancy occurs in the membership.
Added by Laws 1980, c. 323, § 4-102, emerg. eff. June 13, 1980.
§40-4-103. Qualifications.
QUALIFICATIONS. Each member of such Commission shall be a citizen of the United States, and at the time of appointment shall be, and for more than five (5) years shall have been, a bona fide resident and qualified voter of the State of Oklahoma, and shall be not less than thirty (30) years of age at the time of appointment.
During his term of membership on the Commission, no member shall serve as an officer or committee member of any political party organization.
Added by Laws 1980, c. 323, § 4-103, emerg. eff. June 13, 1980.
§40-4-104. Term of office.
TERM OF OFFICE. Each member shall hold office for a term of six (6) years, except that (1) any member appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed shall be appointed for the remainder of such term; and (2) the terms of office of the members first taking office after the date of enactment of this act shall expire, as designated by the Governor at the time of appointment, two at the end of two (2) years, one a representative of employers, and one a representative of employees; two at the end of four (4) years, one a representative of employers, one a representative of employees; and one, the representative of the public, at the end of six (6) years after the date of enactment of this act. The members of the Commission who are serving at the time this bill is enacted shall continue to serve for the remainders of their respective terms without interruption by reason of this enactment.
Added by Laws 1980, c. 323, § 4-104, emerg. eff. June 13, 1980.
§40-4-105. Removal by the Governor.
REMOVAL BY THE GOVERNOR. The Governor may, at any time, after notice and hearing, remove any Commissioner for cause, and such Commissioner sought to be thus removed shall, if he so desires, be given a copy of the charges brought against him, and be given an opportunity of being publicly heard in person, or by counsel, upon not less than ten (10) days' notice. Such hearing shall be had before the Governor of the State of Oklahoma. If such Commissioner be removed, the Governor shall file in the office of the Secretary of State a complete statement of all charges made against such Commissioner, and a complete record of the Governor's proceedings and his findings thereon.
Added by Laws 1980, c. 323, § 4-105, emerg. eff. June 13, 1980.
§40-4-106.1. Compensation and travel expenses.
In addition to reimbursement for travel expenses pursuant to the State Travel Reimbursement Act, Section 500.1 et seq. of Title 74 of the Oklahoma Statutes, each Commissioner shall receive Fifty Dollars ($50.00) for each Commission meeting attended, not to exceed Six Hundred Dollars ($600.00) per annum.
Added by Laws 1992, c. 318, § 8, eff. July 1, 1992.
§40-4-107. Quorum.
QUORUM. Any three Commissioners shall constitute a quorum. No vacancy shall impair the right of the remaining Commissioners to exercise all of the powers of the Commission.
Added by Laws 1980, c. 323, § 4-107, emerg. eff. June 13, 1980.
§40-4-108. Executive Director.
EXECUTIVE DIRECTOR.
A. The chief executive officer of the Commission shall be the Executive Director who shall be appointed by and serve at the pleasure of the Commission. The Executive Director shall have such compensation and further duties as the Commission may establish. The Executive Director may appoint in the unclassified service a Deputy Director and an Associate Director, and shall fix the qualifications and duties of such position. The Executive Director may also appoint in the unclassified service secretaries to the Executive Director, Deputy Director, and Associate Director.
B. If a person has acquired grade, rank and career status under the merit system of personnel administration within the Oklahoma Employment Security Commission before being appointed as Executive Director, Deputy Director, Associate Director, or unclassified secretary, that person shall:
1. Upon termination from the unclassified position, have the right to be reinstated to the position within the Oklahoma Employment Security Commission which was held prior to such appointment, or to an equivalent position, unless the person was terminated for a reason that would justify termination of a classified employee or disqualify the person for reinstatement under the Oklahoma Personnel Act or the rules implementing it; and
2. Be entitled during the unclassified appointment to continue to participate without interruption in any fringe benefit programs available to career employees including, but not limited to, retirement and insurance programs.
Added by Laws 1980, c. 323, § 4-108, emerg. eff. June 13, 1980. Amended by Laws 1982, c. 304, § 20, operative Oct. 1, 1982; Laws 1992, c. 318, § 11, eff. July 1, 1992; Laws 1995, c. 340, § 23, eff. July 1, 1995; Laws 2003, c. 177, § 7, eff. Nov. 1, 2003; Laws 2005, c. 182, § 10, eff. Nov. 1, 2005.
§40-4-201. Applicability.
APPLICABILITY. This part shall apply to the creation, appointment, salary and qualifications of the Board of Review.
Added by Laws 1980, c. 323, § 4-201, emerg. eff. June 13, 1980.
§40-4-202. Creation.
CREATION. There shall be created at such time as is necessary for the proper administration of this act a Board of Review, consisting of three members appointed by the Governor for terms of six (6) years, except that the terms of the members first taking office shall be two (2), four (4) and six (6) years, respectively, as designated by the Governor at the time of appointment, and except that vacancies shall be filled by appointment by the Governor for the unexpired term.
Added by Laws 1980, c. 323, § 4-202, emerg. eff. June 13, 1980.
§40-4-203. Salary.
SALARY. Each member of the Board of Review shall be paid from the Employment Security Administration Fund a salary of Thirty Thousand Dollars ($30,000.00) per annum, payable in twelve (12) monthly installments, plus actual and necessary traveling expenses incurred in the performance of his duties as provided in the State Travel Reimbursement Act.
Added by Laws 1980, c. 323, § 4-203, emerg. eff. June 13, 1980. Amended by Laws 1981, c. 259, § 25, emerg. eff. June 25, 1981; Laws 1982, c. 304, § 21, operative Oct. 1, 1982; Laws 1990, c. 266, § 96, operative July 1, 1990; Laws 1999, c. 306, § 3, eff. July 1, 1999.
§40-4-204. No member to serve as an officer in a political organization.
NO MEMBER TO SERVE AS AN OFFICER IN A POLITICAL ORGANIZATION. No member of the Board of Review shall serve as an officer or committee member of any political party organization during his term of office.
Added by Laws 1980, c. 323, § 4-204, emerg. eff. June 13, 1980.
§40-4-205. Temporary members.
TEMPORARY MEMBERS. In the event of the disqualification of two or more members of the Board of Review from the hearing and determination on a claim for benefits, the Governor shall designate by appointment temporary members to serve as alternate members, such alternates to be paid traveling expenses incurred in the performance of their duties as provided in the State Travel Reimbursement Act. The Governor may at any time, after notice and hearing, remove any member for cause.
Added by Laws 1980, c. 323, § 4-205, emerg. eff. June 13, 1980. Amended by Laws 1985, c. 178, § 17, operative July 1, 1985.
§40-4-301. Applicability.
APPLICABILITY. This part shall apply to the powers and duties of the Commission.
Added by Laws 1980, c. 323, § 4-301, emerg. eff. June 13, 1980.
§40-4-302. Commission shall publish rules and other material.
COMMISSION SHALL PUBLISH RULES AND OTHER MATERIAL. It shall be the duty of the Commission to administer this act; and it shall have the power and authority to adopt, amend, or rescind such rules, to employ such persons, make such expenditures, require such reports, make such investigations, and to take such other action as it deems necessary or suitable to that end.
Added by Laws 1980, c. 323, § 4-302, emerg. eff. June 13, 1980. Amended by Laws 1990, c. 333, § 13, emerg. eff. May 31, 1990.
§40-4-303. Repealed by Laws 1990, c. 333, § 20, emerg. eff. May 31, 1990.
§40-4-304. Commission to determine its own organization and procedure.
COMMISSION TO DETERMINE ITS OWN ORGANIZATION AND PROCEDURE. The Commission shall determine its own organization and methods of procedure in accordance with the provisions of this act.
Added by Laws 1980, c. 323, § 4-304, emerg. eff. June 13, 1980.
§40-4-305. Official seal.
OFFICIAL SEAL. The Commission shall have an official seal which shall be judicially noticed.
Added by Laws 1980, c. 323, § 4-305, emerg. eff. June 13, 1980.
§40-4-306. Report to Governor.
REPORT TO GOVERNOR. Not later than the fifteenth day of February of each year, the Commission shall submit to the Governor a report covering the administration and operation of this act during the preceding calendar year and shall make such recommendations for amendments to this act as the Commission shall deem proper. Such report shall include a balance sheet of the moneys in the fund in which there shall be provided, if possible, a reserve against the liability in future years to pay benefits in excess of the then current contributions, which reserve shall be set up by the Commission in accordance with accepted actuarial principles on the basis of statistics of employment, business activity, and other relevant factors for the longest possible period.
Added by Laws 1980, c. 323, § 4-306, emerg. eff. June 13, 1980.
§40-4-307. Changes in benefits or contribution rates.
CHANGES IN BENEFITS OR CONTRIBUTION RATES. Whenever the Commission believes that a change in contribution or benefit rates will become necessary to protect the solvency of the fund, it shall promptly so inform the Governor, who may make to the Legislature recommendations with respect thereto.
Added by Laws 1980, c. 323, § 4-307, emerg. eff. June 13, 1980.
§40-4-308. Repealed by Laws 1990, c. 333, § 20, emerg. eff. May 31, 1990.
§40-4-309. Repealed by Laws 1990, c. 333, § 20, emerg. eff. May 31, 1990.
§40-4-310. Repealed by Laws 1990, c. 333, § 20, emerg. eff. May 31, 1990.
§40-4-310A. Adoption and promulgation of rules.
ADOPTION AND PROMULGATION OF RULES. The adoption and promulgation of all rules by the Oklahoma Employment Security Commission shall be in accordance with the procedures set forth in Article I of the Administrative Procedures Act, Section 250 et seq. of Title 75 of the Oklahoma Statutes.
Added by Laws 1990, c. 333, § 14, emerg. eff. May 31, 1990.
§40-4-311. Commission shall publish rules.
COMMISSION SHALL PUBLISH RULES. The Oklahoma Employment Security Commission shall cause to be printed for distribution to the public the text of this act, the Commission's rules, its annual reports to the Governor, and any other material the Commission deems relevant and suitable and shall furnish the same to any person upon application therefor.
Added by Laws 1980, c. 323, § 4-311, emerg. eff. June 13, 1980. Amended by Laws 1990, c. 333, § 15, emerg. eff. May 31, 1990; Laws 1993, c. 219, § 32, eff. Sept. 1, 1993.
§40-4-312. Personnel and compensation.
PERSONNEL AND COMPENSATION. Subject to other provisions of this act, the Oklahoma Employment Security Commission is authorized to appoint, fix the compensation and prescribe the duties and powers of such officers, accountants, attorneys, experts, and other persons as may be necessary in the performance of its duties under this act. The Commission may delegate to any such persons such power and authority as it deems reasonable and proper for the effective administration of this act, and may in its discretion bond any person handling moneys or signing checks hereunder. The Commission is authorized and directed to maintain the existing merit system covering all persons employed in the administration of this act and shall have authority, by rule, to provide for all matters which are appropriate to the establishment and maintenance of such system on the basis of efficiency and fitness. The Commission is authorized to adopt such rules as may be necessary to meet personnel standards promulgated by the Office of Personnel Management pursuant to the Social Security Act, as amended, and the Act of Congress entitled "An Act to provide for the establishment of a national employment system, and for other purposes", approved June 6, 1933, as amended, and to provide for the maintenance of the merit system required under this section in conjunction with any merit system applicable to any other state agency or agencies which meets the personnel standards promulgated by the Office of Personnel Management.
Added by Laws 1980, c. 323, § 4-312, emerg. eff. June 13, 1980. Amended by Laws 1990, c. 333, § 16, emerg. eff. May 31, 1990.
§40-4-313. Commission to cooperate and comply with federal law.
COMMISSION TO COOPERATE AND COMPLY WITH FEDERAL LAW. In the administration of this act the Oklahoma Employment Security Commission shall cooperate to the fullest extent consistent with the provisions of this act, with the Social Security Act, as amended, and is authorized and directed to take such action, through the adoption of appropriate rules, administrative methods and standards, as may be necessary to secure to this state and its citizens all advantages available under the provisions of such act, under the provisions of Sections 1602 and 1603 of the Federal Unemployment Tax Act and under the provisions of the Act of Congress entitled "An Act to provide for the establishment of a national employment system and for cooperation with States in the promotion of such system, and for other purposes", approved June 6, 1933, as amended. The Commission shall comply with the regulations of the Secretary of Labor relating to the receipt or expenditure by this state of monies granted under any of such acts and shall make such reports, in such form and containing such information as the Secretary of Labor may from time to time require, and shall comply with such provisions as the Secretary of Labor may from time to time find necessary to assure the correctness and verification of such reports.
The Commission may afford reasonable cooperation with every agency of the United States charged with the administration of any unemployment insurance law.
Added by Laws 1980, c. 323, § 4-313, emerg. eff. June 13, 1980. Amended by Laws 1990, c. 333, § 17, emerg. eff. May 31, 1990.
§40-4-314. Petty cash fund.
PETTY CASH FUND.
There is hereby authorized to be created a petty cash fund for the Oklahoma Employment Security Commission in an amount not to exceed Six Hundred Dollars ($600.00). This fund may be established from any administrative funds available to the Oklahoma Employment Security Commission for general operating expenses and shall be administered under such rules as prescribed by the Director of State Finance.
Added by Laws 1984, c. 251, § 2, emerg. eff. May 29, 1984. Amended by Laws 1993, c. 219, § 33, eff. Sept. 1, 1993; Laws 2005, c. 182, § 11, eff. Nov. 1, 2005.
§40-4-315. Repealed by Laws 2005, c. 182, § 15, eff. Nov. 1, 2005.
§40-4-316. Purchase of real property.
PURCHASE OF REAL PROPERTY. If the Commission determines, to its satisfaction, that suitable quarters, office space or facilities are not readily obtainable, the Commission may enter into an agreement with the board of county commissioners of any county, with any state agency or public trust, or with any private person or entity, for the purchase of real property and any improvements or buildings thereon, for the purpose of providing office space to the Commission. The Commission shall not enter into any agreement under the provisions of this section unless one hundred percent (100%) federal financial participation is obtainable. All such agreements shall contain provisions regarding the financial participation therein by the parties to the agreement, the payments made for the purchase of such property, and the ownership of such real property, improvements and buildings thereon after payment of the cost of construction or renovation has been completed. All such provisions shall be consistent with the requirements necessary for the Commission to obtain or receive federal funds for such purpose. No purchase of any building shall occur without approval of the Legislature.
Added by Laws 1994, c. 349, § 1, eff. July 1, 1994.
§40-4-317. Employee recognition program.
Employee recognition program.
In order to establish a public employee benefit program to encourage outstanding performance in the workplace, the Oklahoma Employment Security Commission is hereby directed to establish an on-the-job employee performance recognition program which encourages outstanding job performance and productivity. In order to promote excellence in job performance and provide recognition for work units with exceptional performance, the Commission is authorized to expend from monies available to it so much thereof as may be necessary for the purchase of recognition awards for presentation to the members of work units or individual employees with exceptional job performance records or for other significant contributions to the operation of the Commission. Recognition awards shall consist of distinctive wearing apparel, service pins, plaques, U.S. Savings Bonds, or other distinguished awards, the value of which shall not exceed One Hundred Dollars ($100.00) per employee, which recognize the achievement of the work unit or individual employee.
Added by Laws 2002, c. 452, § 25, eff. Nov. 1, 2002.
§40-4-401. Applicability.
APPLICABILITY. This part shall apply to the creation, appointment, duties and compensation of the Advisory Council.
Added by Laws 1980, c. 323, § 4-401, emerg. eff. June 13, 1980.
§40-4-402. Creation and appointment.
CREATION AND APPOINTMENT. There is hereby created a state advisory council of six (6) members composed of men and women to be appointed by the Governor. Three of the appointees to this council shall be persons who, on account of their vocations, employments or affiliations, can be classed as representatives of employers, and three appointees shall be persons, who on account of their membership in a recognized labor organization, can be classed as representatives of employees. The Chairman of the Commission created by this act shall be an ex officio member and chairman of the advisory council. The members of said council shall be appointed within thirty (30) days after the enactment of this act. One representative of the employers and one representative of the employees shall be appointed for terms of two (2) years; one representative of the employers and one representative of the employees shall be appointed for terms of four (4) years; one representative of the employers and one representative of the employees shall be appointed for terms of six (6) years; and thereafter as their terms expire the Governor shall appoint members for terms of six (6) years. Vacancies shall be filled by appointment by the Governor for the unexpired term.
Added by Laws 1980, c. 323, § 4-402, emerg. eff. June 13, 1980.
§40-4-403. Compensation and reimbursement.
COMPENSATION AND REIMBURSEMENT. The advisory council shall serve without compensation. Members shall be reimbursed for any travel expense incurred in accordance with the State Travel Reimbursement Act.
Added by Laws 1980, c. 323, § 4-403, emerg. eff. June 13, 1980. Amended by Laws 1985, c. 178, § 18, operative July 1, 1985.
§40-4-404. Duties of council.
DUTIES OF COUNCIL. The council shall aid the Commission in formulating policies, and discussing problems related to the administration of this act.
Added by Laws 1980, c. 323, § 4-404, emerg. eff. June 13, 1980.
§40-4-405. Commission to seek advice and aid of council.
COMMISSION TO SEEK ADVICE AND AID OF COUNCIL. The Commission with the advice and aid of its advisory council shall take all appropriate steps to reduce and prevent unemployment; to encourage and assist in the adoption of practical methods of vocational training, retraining and vocational guidance; to investigate, recommend, advise and assist in the establishment and operation, by municipalities, counties, school districts, and the state, of reserves for public works to be used in times of business depression and unemployment; to promote the reemployment of unemployed workers throughout the state in every other way that may be feasible; and to these ends carry on and publish the results of investigations and research and studies.
Added by Laws 1980, c. 323, § 4-405, emerg. eff. June 13, 1980.
§40-4-501. Applicability.
APPLICABILITY. This part shall apply to the maintenance and production of work records by employers.
Added by Laws 1980, c. 323, § 4-501, emerg. eff. June 13, 1980.
§40-4-502. Employing units to maintain records open to Commission.
EMPLOYING UNITS TO MAINTAIN RECORDS OPEN TO COMMISSION. Each employing unit shall keep true and accurate work records, for such periods of time and containing such information as the Commission may prescribe. Such records shall be maintained for a period of four (4) years and shall be open to inspection and be subject to being copied by the Commission or its authorized representatives at any reasonable time.
Added by Laws 1980 c. 323, § 4-502, emerg. eff. June 13, 1980.
§40-4-503. Sworn or unsworn reports.
SWORN OR UNSWORN REPORTS. The Commission, its authorized representatives, or the Board of Review may require from any employing unit any sworn or unsworn reports, with respect to persons employed by it, which its authorized representatives deem necessary for the effective administration of this act.
Added by Laws 1980, c. 323, § 4-503, emerg. eff. June 13, 1980.
§40-4-504. Oaths, depositions, certifications of official acts and subpoenas.
OATHS, DEPOSITIONS, CERTIFICATIONS OF OFFICIAL ACTS AND SUBPOENAS. In the discharge of the duties imposed by this act, the Commission, the chairman of an appeal tribunal, the members of the Board of Review, and any duly authorized representative of any of them shall have power to administer oaths and affirmations, take depositions, certify to official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim or the administration of this act.
Added by Laws 1980, c. 323, § 4-504, emerg. eff. June 13, 1980.
§40-4-505. Refusal to obey Commission subpoenas - Judicial orders.
REFUSAL TO OBEY COMMISSION SUBPOENAS - JUDICIAL ORDERS. In case of contumacy by, or refusal to obey a subpoena issued to, any person, any court of this state within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the Commission, the Board of Review, the chairman of an appeal tribunal, or any duly authorized representative of any of them shall have jurisdiction to issue to such person an order requiring such person to appear before the Commission, the Board of Review, the chairman of an appeal tribunal or any duly authorized representative of any of them, there to produce evidence if so ordered or there to give testimony touching the matter under investigation or in question. Any failure to obey such order of the court may be punished by said court as a contempt thereof.
Added by Laws 1980, c. 323, § 4-505, emerg. eff. June 13, 1980.
§40-4-506. Penalties for failure to attend lawful inquiries or obey Commission subpoenas.
PENALTIES FOR FAILURE TO ATTEND LAWFUL INQUIRIES OR OBEY COMMISSION SUBPOENAS. Any person who shall without just cause fail or refuse to attend and testify or to answer any lawful inquiry or to produce books, papers, correspondence, memoranda, and other records, if it is in its power so to do, in obedience to a subpoena of the Commission, the Board of Review, the chairman of an appeal tribunal, or any duly-authorized representative of any of them, shall be punished by a fine of not less than Five Hundred Dollars ($500.00) or by imprisonment for not longer than sixty (60) days, or by both such fine and imprisonment.
Added by Laws 1980, c. 323, § 4-506, emerg. eff. June 13, 1980. Amended by Laws 1982, c. 304, § 22, operative Oct. 1, 1982.
§40-4-507. Self-incrimination.
SELF-INCRIMINATION. No person shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda, and other records before the Commission, the Board of Review, the chairman of an appeal tribunal, or any duly authorized representative of any of them, or in obedience to the subpoena of any of them in any cause or proceeding before the Commission, the Board of Review, or an appeal tribunal, on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to a penalty or forfeiture; but no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying.
Added by Laws 1980, c. 323, § 4-507, emerg. eff. June 13, 1980.
§40-4-508. Information to be kept confidential - Disclosure.
INFORMATION TO BE KEPT CONFIDENTIAL - DISCLOSURE.
A. Except as otherwise provided by law, information obtained from any employing unit or individual pursuant to the administration of the Employment Security Act of 1980, and determinations as to the benefit rights of any individual shall be kept confidential and shall not be disclosed or be open to public inspection in any manner revealing the individual's or employing unit's identity. Any claimant or employer or agent of such person as authorized in writing shall be supplied with information from the records of the Oklahoma Employment Security Commission, to the extent necessary for the proper presentation of the claim or complaint in any proceeding under the Employment Security Act of 1980, with respect thereto.
B. Upon receipt of written request by any employer who maintains a Supplemental Unemployment Benefit (SUB) Plan, the Commission or its designated representative may release to such employer information regarding weekly benefit amounts paid its workers during a specified temporary layoff period, provided such Supplemental Unemployment Benefit (SUB) Plan requires benefit payment information before Supplemental Unemployment Benefits can be paid to such workers. Any information disclosed under this provision shall be utilized solely for the purpose outlined herein and shall be held strictly confidential by the employer.
C. The provisions of this section shall not prevent the Commission from disclosing the following information and no liability whatsoever, civil or criminal, shall attach to any member of the Commission or any employee thereof for any error or omission in the disclosure of such information:
1. The delivery to taxpayer or claimant a copy of any report or other paper filed by the taxpayer or claimant pursuant to the Employment Security Act of 1980;
2. The disclosure of information to any person for a purpose as authorized by the taxpayer or claimant pursuant to a waiver of confidentiality. The waiver shall be in writing and shall be notarized;
3. The Oklahoma Department of Commerce may have access to data obtained pursuant to the Employment Security Act of 1980 pursuant to rules promulgated by the Commission. The information obtained shall be held confidential by the Department and any of its agents and shall not be disclosed or be open to public inspection. The Oklahoma Department of Commerce, however, may release aggregated data, either by industry or county, provided that such aggregation meets disclosure requirements of the Commission;
4. The publication of statistics so classified as to prevent the identification of a particular report and the items thereof;
5. The disclosing of information or evidence to the Attorney General or any district attorney when the information or evidence is to be used by the officials or other parties to the proceedings to prosecute or defend allegations of violations of the Employment Security Act of 1980. The information disclosed to the Attorney General or any district attorney shall be kept confidential by them and not be disclosed except when presented to a court in a prosecution of a violation of Section 1-101 et seq. of this title, and a violation by the Attorney General or district attorney by otherwise releasing the information shall be a felony;
6. The furnishing, at the discretion of the Commission, of any information disclosed by the records or files to any official person or body of this state, any other state or of the United States who is concerned with the administration of assessment of any similar tax in this state, any other state or the United States;
7. The furnishing of information to other state agencies for the limited purpose of aiding in the collection of debts owed by individuals to the requesting agencies;
8. The release to employees of the Department of Transportation of information required for use in federally mandated regional transportation planning, which is performed as a part of its official duties;
9. The release to employees of the State Treasurer's office of information required to verify or evaluate the effectiveness of the Oklahoma Small Business Linked Deposit Program on job creation;
10. The release to employees of the Attorney General, the State Insurance Fund, the Department of Labor, the Workers' Compensation Court, and the Insurance Department for use in investigation of workers' compensation fraud;
11. The release to employees of the Oklahoma State Bureau of Investigation or release to employees of 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;
12. The release to employees of the Center of International Trade, Oklahoma State University, of information required for the development of International Trade for employers doing business in the State of Oklahoma;
13. The release to employees of the Oklahoma State Regents for Higher Education of information required for use in the default prevention efforts and/or collection of defaulted student loans guaranteed by the Oklahoma Guaranteed Student Loan Program. Any information disclosed under this provision shall be utilized solely for the purpose outlined herein and shall be held strictly confidential by the Oklahoma State Regents for Higher Education;
14. The release to employees of the Center for Economic and Management Research of the University of Oklahoma, of information required to identify economic trends. The information obtained shall be kept confidential by the University and shall not be disclosed or be open to public inspection. The University of Oklahoma may release aggregated data, provided that such aggregation meets disclosure requirements of the Commission;
15. The release to employees of the Office of State Finance of information required to identify economic trends. The information obtained shall be kept confidential by the Office of State Finance and shall not be disclosed or be open to public inspection. The Office of State Finance may release aggregate data, provided that such aggregation meets disclosure requirements of the Commission;
16. The release to employees of the Department of Mental Health and Substance Abuse Services of information required to evaluate the effectiveness of mental health and substance abuse treatment and state or local programs utilized to divert persons from inpatient treatment. The information obtained shall be kept confidential by the Department and shall not be disclosed or be open to public inspection. The Department of Mental Health and Substance Abuse Services, however, may release aggregated data, either by treatment facility, program or larger aggregate units, provided that such aggregation meets disclosure requirements of the Oklahoma Employment Security Commission;
17. The release to employees of the Attorney General, the Oklahoma State Bureau of Investigation, and the Insurance Department for use in the investigation of insurance fraud;
18. The release to employees of public housing agencies for purposes of determining eligibility pursuant to 42 U.S.C. Section 503(i);
19. The release of wage and benefit claim information, at the discretion of the Commission, to 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), based on a showing of need made to the Commission and after an agreement concerning the release of information is entered into with the entity receiving the information;
20. The release of information to the wage record interchange system, at the discretion of the Commission;
21. The release of information to the Bureau of the Census of the U.S. Department of Commerce for the purpose of economic and statistical research; or
22. The release of employer tax information and benefit claim information to the Oklahoma Health Care Authority for use in determining eligibility for a program that will provide subsidies for health insurance premiums for qualified employers, employees, self-employed persons, and unemployed persons.
D. Subpoenas to compel disclosure of information made confidential by this statute shall not be valid, except for administrative subpoenas issued by federal, state, or local governmental agencies that have been granted subpoena power by statute or ordinance. Confidential information maintained by the Commission can be obtained by order of a court of record that authorizes the release of the records in writing. All administrative subpoenas or court orders for production of documents must provide a minimum of twenty (20) days from the date it is served for the Commission to produce the documents. If the date on which production of the documents is required is less than twenty (20) days from the date of service, the subpoena or order shall be considered void on its face as an undue burden or hardship on the Commission.
E. Should any of the disclosures provided for in this section require more than casual or incidental staff time, the Commission may charge the cost of such staff time to the party requesting the information.
F. It is further provided that the provisions of this section shall be strictly interpreted and shall not be construed as permitting the disclosure of any other information contained in the records and files of the Commission.
Added by Laws 1980, c. 323, § 4-508, emerg. eff. June 13, 1980. Amended by Laws 1981, c. 259, § 26, emerg. eff. June 25, 1981; Laws 1982, c. 304, § 23, operative Oct. 1, 1982; Laws 1984, c. 251, § 1, emerg. eff. May 29, 1984; Laws 1990, c. 235, § 3, eff. Sept. 1, 1990; Laws 1993, c. 349, § 35, eff. Sept. 1, 1993; Laws 1994, c. 195, § 8, emerg. eff. May 16, 1994; Laws 1995, c. 340, § 20, eff. July 1, 1995; Laws 1997, c. 30, § 20, eff. July 1, 1997; Laws 1997, c. 359, § 15, eff. July 1, 1997; Laws 2000, c. 348, § 3, eff. Nov. 1, 2000; Laws 2001, c. 363, § 28, eff. July 1, 2001; Laws 2002, c. 452, § 26, eff. Nov. 1, 2002; Laws 2003, c. 177, § 8, eff. Nov. 1, 2003; Laws 2005, c. 182, § 12, eff. Nov. 1, 2005.
NOTE: Laws 1997, c. 133, § 453 repealed by Laws 1999, 1st Ex. Sess., c. 5, § 452, eff. July 1, 1999. Laws 2002, c. 160, § 1 repealed by Laws 2003, c. 3, § 19, emerg. eff. March 19, 2003.
§40-4-509. Information to be furnished to public agencies.
INFORMATION TO BE FURNISHED TO PUBLIC AGENCIES.
A. Subject to such restrictions as the Oklahoma Employment Security Commission may by rule prescribe, information maintained by the Commission may be made available to any agency of this or any other state, or any federal agency, charged with the administration of an unemployment compensation law or the maintenance of a system of public employment offices, or the Internal Revenue Service of the United States Department of the Treasury, the United States Social Security Administration or the Oklahoma Tax Commission. Any information obtained in connection with the administration of the employment service may be made available to:
1. Persons or agencies for purposes appropriate to the operation of a public employment service; or
2. Any agency of this state or its political subdivisions or nonprofit corporation that operates a program or activity designated as a required partner in the Workforce Investment Act One-Stop delivery system pursuant to 29 U.S.C., Section 2841 (b)(1), in accordance with a written agreement entered into between the partner and the Commission.
B. Upon request, the Commission shall furnish to any agency of the United States charged with the administration of public works or assistance through public employment, and may furnish to any state agency similarly charged, the name, address, ordinary occupation, and employment status of each recipient of benefits and such recipient's rights to further benefits pursuant to the provisions of the Employment Security Act of 1980. The Commission shall furnish to public agencies collecting debts created by food stamp overissuances or administering Transitional Assistance to Needy Families (TANF) or child support programs, promptly upon request and in the most economical, effective and timely manner, information as to:
1. Whether an individual has applied for, is receiving or has received unemployment insurance and the amount;
2. The individual's current address;
3. Whether the individual has refused employment and if so a description of the job including the terms, conditions and rate of pay; and
4. Any other information that might be useful in locating any individual who may have a food stamp overissuance or an obligation for support.
Added by Laws 1980, c. 323, § 4-509, emerg. eff. June 13, 1980. Amended by Laws 1983, c. 275, § 1, emerg. eff. June 24, 1983; Laws 1990, c. 309, § 10, eff. Sept. 1, 1990; Laws 1993, c. 219, § 34, eff. Sept. 1, 1993; Laws 1997, c. 30, § 21, eff. July 1, 1997; Laws 2002, c. 452, § 27, eff. Nov. 1, 2002.
§40-4-510. Commission may request examination of return of national bank.
COMMISSION MAY REQUEST EXAMINATION OF RETURN OF NATIONAL BANK. The Commission may request the Comptroller of the Currency of the United States to cause an examination of the correctness of any return or report of any national banking association rendered pursuant to the provisions of this act, and may in connection with such request transmit any such report or return to the Comptroller of the Currency of the United States as provided in Section 1606(c) of the Federal Internal Revenue Code.
Added by Laws 1980, c. 323, § 4-510, emerg. eff. June 13, 1980.
§40-4-511. Communications to Commission privileged - Not subject to slander or libel.
COMMUNICATIONS TO COMMISSION PRIVILEGED - NOT SUBJECT TO SLANDER OR LIBEL. All letters, reports, communications and other matters, written or oral from employer or former employer or claimant, to the Commission or any of its agents or to any board which have been written, sent, or made in connection with the requirements and administration of this act, shall be absolutely privileged and shall not be the subject matter or basis for any suit for slander or libel in any court, but no employer or claimant or their representatives testifying before the Commission or any board provided for in this act shall be exempt from punishment for perjury.
Added by Laws 1980, c. 323, § 4-511, emerg. eff. June 13, 1980.
§40-4-601. Applicability.
APPLICABILITY. This part shall apply to the Employment Security Administration Fund.
Added by Laws 1980, c. 323, § 4-601, emerg. eff. June 13, 1980.
§40-4-602. Fund created.
FUND CREATED. There is hereby created in the State Treasury a special fund to be known as the Employment Security Administration Fund. All moneys which are deposited or paid into this fund shall be continuously available to the Commission for expenditure in accordance with the provisions of this act, and shall not lapse at any time or be transferred to any other fund.
Added by Laws 1980, c. 323, § 4-602, emerg. eff. June 13, 1980.
§40-4-603. Moneys expended in accordance with Secretary of Labor.
MONEYS EXPENDED IN ACCORDANCE WITH SECRETARY OF LABOR. All moneys in this fund which are received from the federal government or any agency thereof or which are appropriated by this state for the purposes described in Part 8 of this Article shall be expended by the Commission solely for the purposes and in the amounts found necessary by the Secretary of Labor for the proper and efficient administration of this act.
Added by Laws 1980, c. 323, § 4-603, emerg. eff. June 13, 1980.
§40-4-604. Composition of fund.
COMPOSITION OF FUND. The fund shall consist of all moneys appropriated by this state, all moneys received from the United States of America, or any agency thereof, and all moneys received from any other source for such purpose, and shall also include any moneys received from any agency of the United States or any other state as compensation for services or facilities supplied to such agency, any amounts received pursuant to any surety bond or insurance policy or from other sources for losses sustained by the Employment Security Administration Fund or by reason of damage to equipment or supplies purchased from moneys in such fund, and any proceeds realized from the sale or disposition of any such equipment or supplies which may no longer be necessary for the proper administration of this act.
Added by Laws 1980, c. 323, § 4-604, emerg. eff. June 13, 1980.
§40-4-605. Maintenance of administrative fund.
MAINTENANCE OF ADMINISTRATIVE FUND.
All monies in this fund shall be deposited in a special fund in the State Treasury. Such monies shall be secured by collateral in the full amount of the funds on deposit in the same kind and manner the State Treasurer is required to secure other funds of the state on deposit.
Added by Laws 1980, c. 323, § 4-605, emerg. eff. June 13, 1980. Amended by Laws 1997, c. 30, § 22, eff. July 1, 1997; Laws 1997, c. 391, § 2, eff. July 1, 1997.
§40-4-606. State Treasurer liable on official bond.
STATE TREASURER LIABLE ON OFFICIAL BOND. The State Treasurer shall be liable on his official bond for the faithful performance of his duties in connection with the Employment Security Administration Fund provided for under this act. Such liability on the official bond shall be effective immediately upon the enactment of this provision, and such liability shall exist in addition to any liability upon any separate bond existent on the effective date of this provision, or which may be given in the future. All sums recovered on any surety bond for losses sustained by the Employment Security Administration Fund shall be deposited in said fund.
Added by Laws 1980, c. 323, § 4-606, emerg. eff. June 13, 1980.
§40-4-607. Reimbursement of fund.
REIMBURSEMENT OF FUND. This state recognizes its obligation to replace, and hereby pledges the faith of this state that funds will be provided in the future, and applied to the replacement of any moneys received after July 1, 1941, from the Secretary of Labor under Title III of the Social Security Act, any unencumbered balances in the Employment Security Administration Fund as of that date, any moneys thereafter granted to this state pursuant to the provisions of the Wagner-Peyser Act, and any moneys made available by the state or its political subdivisions and matched by such moneys granted to this state pursuant to the provisions of the Wagner-Peyser Act, which the Secretary of Labor finds have, because of any action or contingency, been lost or have been expended for purposes other than, or in amounts in excess of, those found necessary by the Secretary of Labor for the proper administration of this act. Such moneys shall be promptly replaced by moneys appropriated for such purpose from the general funds of this state to the Employment Security Administration Fund for expenditures as provided in this Part. The Commission shall promptly report to the Governor, and the Governor to the Legislature, the amount required for such replacement. This section shall not be construed to relieve this state of its obligation with respect to funds received prior to July 1, 1941, pursuant to the provisions of Title III of the Social Security Act.
Added by Laws 1980, c. 323, § 4-607, emerg. eff. June 13, 1980.
§40-4-608. Reed Act distributions.
REED ACT DISTRIBUTIONS.
A. Monies credited to the account of this state in the Unemployment Trust Fund, described in Section 3-605 of this title, by the Secretary of the Treasury of the United States pursuant to 42 U.S.C., Section 1103, may be used for the payment of unemployment benefits to qualified claimants in this state, or may be appropriated by the Legislature following the procedure set out in 42 U.S.C., Section 1103 (c)(2), for the administration of the unemployment compensation law and public employment offices in this state.
B. Monies credited to the account of this state in the Unemployment Trust Fund, described in Section 3-605 of this title, by the Secretary of the Treasury of the United States pursuant to 42 U.S.C., Section 1103, with respect to federal fiscal years 1999, 2000, and 2001, shall be used solely for the administration of the Unemployment Compensation Program in this state.
Added by Laws 1998, c. 161, § 13, eff. July 1, 1998. Amended by Laws 2002, c. 452, § 28, eff. Nov. 1, 2002.
§40-4-701. Applicability.
APPLICABILITY. This part shall apply to reciprocal arrangements with agencies of other states, of the federal government, or with foreign governments.
Added by Laws 1980, c. 323, § 4-701, emerg. eff. June 13, 1980.
§40-4-702. Reciprocal arrangements authorized.
RECIPROCAL ARRANGEMENTS AUTHORIZED. The Commission is hereby authorized to enter into reciprocal arrangements with appropriate and duly authorized agencies of other states or of the federal government, or both, whereby:
1. Services performed by an individual for a single employing unit for which services are customarily performed in more than one state shall be deemed to be services performed entirely within any one of the states in which:
a. any parts of such individual's service is performed,
b. such individual has his residence, or
c. the employing unit maintains a place of business,
provided there is in effect, as to such services, an election, approved by the agency charged with the administration of such state's unemployment compensation law, pursuant to which all the services performed by such individual for such employing unit are deemed to be performed entirely within such state;
2. The Commission shall cooperate with the Department of Labor of the United States to the fullest extent consistent with the provisions of this act, and shall take such action, through the adoption of appropriate rules, administrative methods and standards, as may be necessary to secure to this state and its citizens all advantages available under the provisions of the Social Security Act, 42 U.S.C., Section 301 et seq., that relate to unemployment compensation, the Federal Unemployment Tax Act, 26 U.S.C., Section 3301 et seq., the Wagner-Peyser Act, 29 U.S.C., Section 49 et seq., the Federal-State Extended Unemployment Compensation Act of 1970, 26 U.S.C., Section 3304 et seq., and any federal comprehensive manpower act and any other similar or related federal acts;
3. The Commission shall participate in any arrangements for the payment of compensation on the basis of combining an individual's wages and employment covered under said Oklahoma Employment Security Act, as amended by this act, with his wages and employment covered under the unemployment compensation laws of other states which are approved by the United States Secretary of Labor in consultation with the state unemployment compensation agencies as reasonably calculated to assure the prompt and full payment of compensation in such situations and which include provisions for:
a. applying the base period of a single state law to a claim involving the combining of an individual's wages and employment covered under two or more state unemployment compensation laws, and
b. avoiding the duplicate use of wage and employment by reason of such combining; and
4. Contributions due under this act with respect to wages for insured work shall for the purposes of this act be deemed to have been paid to the fund as of the date payment was made as contributions therefor under another state or federal unemployment compensation law, but no such arrangement shall be entered into unless it contains provisions for such reimbursement to the fund of such contributions and the actual earnings thereon as the Commission finds will be fair and reasonable as to all affected interests.
Added by Laws 1980, c. 323, § 4-702, emerg. eff. June 13, 1980. Amended by Laws 1993, c. 219, § 35, eff. Sept. 1, 1993.
§40-4-703. Reimbursements to be deemed benefits.
REIMBURSEMENTS TO BE DEEMED BENEFITS. Reimbursements paid from the fund pursuant to subsection (3) of Section 4-702 of this act shall be deemed to be benefits for the purpose of this act. The Commission is authorized to make to other state or federal agencies and to receive from such other state or federal agencies reimbursements from or to the fund in accordance with arrangements entered into pursuant to Section 4-702 of this act.
Added by Laws 1980, c. 323, § 4-703, emerg. eff. June 13, 1980.
§40-4-704. Cooperation authorized.
COOPERATION AUTHORIZED. The administration of this act and of other state and federal unemployment compensation and public employment service laws will be promoted by cooperation between this state and such other states and the appropriate federal agencies in exchanging services, and making available facilities and information. The Commission is therefore authorized to make such investigations, secure and transmit such information, make available such services and facilities and exercise such of the other powers provided herein with respect to the administration of this act as it deems necessary or appropriate to facilitate the administration of any such unemployment compensation or public employment service law, and, in like manner, to accept and utilize information, services and facilities made available to this state by the agency charged with the administration of any such other unemployment compensation or public employment service law.
Added by Laws 1980, c. 323, § 4-704, emerg. eff. June 13, 1980.
§40-4-705. Cooperative arrangements with foreign governments.
COOPERATIVE ARRANGEMENTS WITH FOREIGN GOVERNMENTS. To the extent permissible under the laws and Constitution of the United States, the Commission is authorized to enter into or cooperate in arrangements whereby facilities and services provided under the unemployment compensation law of any foreign government, may be utilized for the taking of claims and the payment of benefits under the employment security law of this state or under a similar law of such government.
Added by Laws 1980, c. 323, § 4-705, emerg. eff. June 13, 1980.
§40-4-801. Applicability.
APPLICABILITY. This part applies to the Oklahoma State Employment Service.
Added by Laws 1980, c. 323, § 4-801, emerg. eff. June 13, 1980.
§40-4-802. Establishment.
ESTABLISHMENT. The Oklahoma State Employment Service is hereby established in the Employment Security Division of the Commission. The Commission, in the conduct of such service, shall establish and maintain free public employment offices in such number and in such places as may be necessary for the proper administration of this act and for the purposes of performing such functions as are within the purview of the Act of Congress entitled "An Act to provide for the establishment of a national employment system and for cooperation with the States in the promotion of such system, and for other purposes," approved June 6, 1933, (48 Stat. 113; U.S.C., title 29, Section 49 (c)) as amended, hereinafter referred to as the "Wagner-Peyser Act." The provisions of the said Act of Congress are hereby accepted by this state, and the Commission is hereby designated and constituted the agency of this state for the purposes of said act.
Added by Laws 1980, c. 323, § 4-802, emerg. eff. June 13, 1980.
§40-4-803. Moneys to be paid into the Employment Security Administration.
MONEYS TO BE PAID INTO THE EMPLOYMENT SECURITY ADMINISTRATION FUND. All moneys received by this state under the Wagner-Peyser Act shall be paid into the Employment Security Administration Fund and shall be expended solely for the maintenance of the state system of public employment offices.
Added by Laws 1980, c. 323, § 4-803, emerg. eff. June 13, 1980.
§40-4-804. Cooperative agreements.
COOPERATIVE AGREEMENTS. For the purpose of establishing and maintaining free public employment offices, and promoting the use of their facilities, the Commission is authorized to enter into agreements with the Railroad Retirement Board, or any other agency of the United States, or of this or any other state, charged with the administration of any law whose purposes are reasonably related to the purposes of this act, and as a part of such agreements may accept moneys, services or quarters as a contribution to the maintenance of the state system of public employment offices or as reimbursement for services performed. All moneys received for such purposes shall be paid into the Employment Security Administration Fund.
Added by Laws 1980, c. 323, § 4-804, emerg. eff. June 13, 1980.
§40-4-901. Oklahoma Employment Security Commission Revolving Fund.
There is hereby created in the State Treasury a revolving fund for the Oklahoma Employment Security Commission, to be designated the "Oklahoma Employment Security Commission Revolving Fund". The revolving fund shall consist of all penalties and interest received by the Oklahoma Employment Security Commission. Said revolving fund shall be a continuing fund, not subject to fiscal year limitations and shall not be subject to legislative appropriation. Expenditures from said revolving fund shall be made pursuant to the laws of this state and the statutes relating to the Oklahoma Employment Security Commission and shall be for administration expenses of the Oklahoma Employment Security Commission and for any other purpose which the Legislature directs. Warrants for expenditures from said fund shall be drawn by the State Treasurer, based on claims signed by an authorized employee or employees of the Oklahoma Employment Security Commission and approved for payment by the Director of State Finance.
Added by Laws 1986, c. 205, § 10, emerg. eff. June 6, 1986. Amended by Laws 1989, c. 313, § 10, operative July 1, 1989.
§40-5-101. Applicability.
APPLICABILITY. This part applies to penalties for violations of this act.
Added by Laws 1980, c. 323, § 5-101, eff. July 1, 1980.
§40-5-102. False statement for benefits, failure to disclose material fact.
FALSE STATEMENT FOR BENEFITS, FAILURE TO DISCLOSE MATERIAL FACT.
A. Whoever makes a false statement or representation knowing it to be false or knowingly fails to disclose a material fact, to obtain or increase any benefit or other payment under this act or under the unemployment compensation law of any state or of the federal government, either for the individual or for any other person, shall, upon conviction, be guilty of a misdemeanor and shall be punished by a fine of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00), or by imprisonment for not more than ninety (90) days, or by both such fine and imprisonment; and each such false statement or representation or failure to disclose a material fact shall constitute a separate offense for each week of benefits.
B. If a person is convicted of the crime described in subsection A of this section in a particular benefit year, and in any subsequent benefit year that person again commits the crime described in subsection A of this section, that person shall be guilty of a misdemeanor and shall be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00), or by imprisonment for not more than one hundred eighty (180) days, or by both fine and imprisonment. Each such false statement or representation or failure to disclose a material fact shall constitute a separate offense for each week of benefits.
C. Upon conviction sentences may be suspended or upon a plea of guilty judgment and sentencing may be deferred only upon the condition of full restitution to the Commission of all benefits so obtained or the excess of any benefits so increased.
Added by Laws 1980, c. 323, § 5-102, eff. July 1, 1980. Amended by Laws 2002, c. 452, § 29, eff. Nov. 1, 2002.
§40-5-103. Violations by employers.
VIOLATIONS BY EMPLOYERS. Any employer or any officer or agent of an employer or any other person who makes a false statement or representation knowing it to be false, or who knowingly fails to disclose a material fact, to prevent or reduce the payment of benefits to any individual entitled thereto, or to avoid becoming or remaining a subject employer or to avoid or reduce any contribution or other payment required from an employing unit under this act or under the unemployment compensation law of any state or of the federal government, or who willfully fails or refuses to make or to furnish any reports required hereunder or to produce or permit the inspection or copying of records as required hereunder, shall be guilty of a misdemeanor and shall be punished by a fine of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00), or by imprisonment for not longer than ninety (90) days, or by both fine and imprisonment; and each such false statement or representation or failure to disclose a material fact, and each day of such failure or refusal shall constitute a separate offense.
Added by Laws 1980, c. 323, § 5-103, eff. July 1, 1980.
§40-5-104. Violations of act, and regulations for which no specific penalty is otherwise provided.
VIOLATIONS OF ACT, AND REGULATIONS FOR WHICH NO SPECIFIC PENALTY IS OTHERWISE PROVIDED. Any person who shall willfully violate any provision of this act or any order, rule, or regulation thereunder, the violation of which is made unlawful or the observance of which is required under the terms of this act, and for which a penalty is neither prescribed in this act nor provided by any other applicable statute, shall be guilty of a misdemeanor and shall be punished by a fine of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00), or by imprisonment for not longer than ninety (90) days, or by both such fine and imprisonment, and each day such violation continues shall be deemed to be a separate offense.
Added by Laws 1980, c. 323, § 5-104, eff. July 1, 1980.
§40-5-107. Wrongful disclosure of information.
WRONGFUL DISCLOSURE OF INFORMATION. If any employee or member of the Board of Review or the Commission or any employee of the Commission, in violation of Section 4-508, makes any disclosure of information obtained from any employing unit or individual in the administration of this act, or if any person who has obtained any list of applicants for work, or of claimants or recipients of benefits, under this act shall use or permit the use of such list for any political purpose, he shall be guilty of a misdemeanor and shall be punished by a fine of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00), or imprisoned for not longer than ninety (90) days, or both.
Added by Laws 1980, c. 323, § 5-107, eff. July 1, 1980.
§40-5-108. Other penalties in this act.
OTHER PENALTIES IN THIS ACT.
Other penalties are provided in the following sections:
Employer violations of employee rights - Section 2-301
Impermissible charges to claimants - Section 2-302
Disqualification of benefit claims for fraud - Section 2-402
Recovery of benefits paid upon false statement - Section 2-613
SUTA dumping prohibition - Section 3-111.1
Added by Laws 1980, c. 323, § 5-108, eff. July 1, 1980. Amended by Laws 2005, c. 182, § 13, eff. Nov. 1, 2005.
§40-5-109. Renumbered as § 3-310 of this title by Laws 1993, c. 219, § 36, eff. Sept. 1, 1993.
§40-5-201. Applicability.
APPLICABILITY. The provisions of this part apply to representation in court in civil or criminal actions of this act.
Added by Laws 1980, c. 323, § 5-201, eff. July 1, 1980.
§40-5-202. Civil actions.
CIVIL ACTIONS. In any civil action to enforce the provisions of this act the Commission, the Board of Review, and the state may be represented by any qualified attorney who is employed by the Commission and is designated by it for this purpose, or at the Commission's request by the Attorney General, or if the action is brought in the courts of any other state by any attorney qualified to appear in the courts of that state.
Added by Laws 1980, c. 323, § 5-202, eff. July 1, 1980.
§40-5-203. Criminal actions.
CRIMINAL ACTIONS. All criminal actions for violation of any provisions of this act, or of any rules or regulations issued pursuant thereto, shall be prosecuted by the Attorney General of the state, or by the prosecuting attorney of any county in which the employing unit has a place of business or the violator resides.
Added by Laws 1980, c. 323, § 5-203, eff. July 1, 1980.
§40-6-101. OESC Computer Fund.
OESC COMPUTER FUND.
A. There is hereby created in the State Treasury a revolving fund for the Oklahoma Employment Security Commission to be designated the "OESC Computer Fund". The OESC Computer Fund shall be separate and distinct from the Unemployment Compensation Fund and shall consist of:
1. All monies received from employers and paid pursuant to Section 7 of this act;
2. All other sums, from whatever source, received by the Commission and paid into the OESC Computer Fund; and
3. Property and securities acquired by and through the use of monies in the OESC Computer Fund.
B. The OESC Computer Fund shall be a continuing fund, not subject to fiscal year limitations. All monies accruing to the credit of the OESC Computer Fund are hereby appropriated and may be budgeted and expended for the purposes set forth in Section 5 of this act. Expenditures from the OESC Computer Fund shall be made upon warrants issued by the State Treasurer against claims filed, as prescribed by law, with the Director of State Finance for approval and payment.
Added by Laws 1997, c. 391, § 4, eff. July 1, 1997.
§40-6-102. Expenditures from fund.
EXPENDITURES FROM FUND.
A. The monies in the OESC Computer Fund shall be used for the following purposes:
1. To purchase or lease a new computer system for the Oklahoma Employment Security Commission to be used in its mission to provide an employment service, unemployment insurance, and economic research for the citizens of this state as well as the administration of these programs;
2. To purchase or lease any auxiliary or peripheral equipment necessary for the operation of the new computer system;
3. To purchase or lease any and all software needed for the operation of the new computer system;
4. To pay for all computer programming and analysis necessary to make the new computer system operational;
5. To pay for all designing, engineering, planning, networking, and training to make the new computer system operational;
6. To pay for all shipping and installation charges for the computer system and its auxiliary and peripheral equipment; and
7. To make refunds of contributions erroneously collected and deposited in the OESC Computer Fund.
B. If any money remains in this fund after the new computer system has been brought on line and made fully operational, that excess money shall be transferred to the Unemployment Compensation Fund.
C. If the Commission receives a grant from the United States Department of Labor to be used to make the Commission's computer system compliant with the year 2000, or if the Commission receives a grant from the United States Department of Labor to upgrade or modify its Interactive Voice Response System (IVRS), then the Commission will, upon receipt of the federal grant money, deduct an equal amount of money from the OESC Computer Fund and transfer it to the Unemployment Compensation Fund.
Added by Laws 1997, c. 391, § 5, eff. July 1, 1997.
§40-6-103. Custodian and treasurer of fund.
CUSTODIAN AND TREASURER OF FUND.
A. The State Treasurer shall be the custodian and treasurer of the OESC Computer Fund.
B. The State Treasurer shall deposit the monies belonging to the OESC Computer Fund, that are in his or her custody, subject to the provisions of Section 7 of this act.
C. The State Treasurer, as custodian of the OESC Computer Fund, shall hold, invest, transfer, sell, deposit, and release those monies, properties, or securities in a manner approved by the Oklahoma Employment Security Commission. Provided, however, that those monies shall be invested in the classes of securities legal for investment of public monies of this state. Provided further, the investment shall at all times be so made that all assets of the OESC Computer Fund shall always be readily convertible into cash when needed for any expenditure authorized in Section 5 of this act.
Added by Laws 1997, c. 391, § 6, eff. July 1, 1997.
§40-6-104. Computer fund assessments.
COMPUTER FUND ASSESSMENTS.
A. 1. For the period from July 1, 1997, to June 30, 1998, each employer subject to the provisions of Sections 3-103, 3-109 and 3-110 of Title 40 of the Oklahoma Statutes shall be required to pay an OESC Computer Fund assessment equal to fifty percent (50%) of the unemployment contributions that would be owed to the Oklahoma Employment Security Commission before any rate reduction is made pursuant to Section 3 of this act. This assessment shall be in addition to any contribution which that employer is required to make pursuant to the provisions of the Employment Security Act of 1980.
2. The assessment provided for in this section shall not be considered part of any contribution required of an individual employer pursuant to the Employment Security Act of 1980, nor shall it be considered for purposes of determining the individual employers contribution rate.
B. Employers assigned a tax rate pursuant to Sections 3-103 and 3-110 of Title 40 of the Oklahoma Statutes shall pay an OESC Computer Fund assessment equal to the rate reduction granted them pursuant to Section 3 of this act.
C. Employers who qualify for an earned rate calculated pursuant to Section 3-109 of Title 40 of the Oklahoma Statutes, and are given a rate of five and one-half percent (5.5%), shall be exempt from the provisions of this section.
D. Employers making payments in lieu of contributions pursuant to Sections 3-702, 3-705 and 3-806 of Title 40 of the Oklahoma Statutes shall be exempt from the provisions of this section.
E. The assessment shall be made and collected by the Oklahoma Employment Security Commission for deposit, on a quarterly basis, to the credit of the OESC Computer Fund. Provided, all monies received by the Oklahoma Employment Security Commission for the account of the OESC Computer Fund, upon receipt, shall be deposited in a clearance account in a financial institution located in this state.
F. Once the sum of Twenty Million Dollars ($20,000,000.00) is collected through this assessment, any amount of money collected through this assessment in excess of Twenty Million Dollars ($20,000,000.00) shall be transferred to the Unemployment Compensation Fund.
G. The Oklahoma Employment Security Commission shall promulgate such rules as may be necessary to implement the provisions of Sections 3 through 7 of this act.
Added by Laws 1997, c. 391, § 7, eff. July 1, 1997.
§40-9-101. Effective date.
EFFECTIVE DATE. (1) Except as otherwise provided in this article, this act becomes effective on July 1, 1980.
(2) Article 4 on Administration takes effect upon enactment of this act.
(3) Part 6 of Article 2 on Appeals takes effect on October 1, 1980; provided however, the Oklahoma Employment Security Commission may by resolution provide that Part 6 of Article 2 on Appeals becomes effective at an earlier date than October 1, 1980, if the Commission by resolution adopts an earlier date.
Added by Laws 1980, c. 323, § 9-101, eff. July 1, 1980.
§40-9-102. Repeal.
REPEAL. The Oklahoma Employment Security Act, 40 O.S. 1971, Sections 211 through 238.1, both inclusive, as amended, is hereby repealed subject to the provisions of Section 9-103, except that 40 O.S. 1971, Section 226 (a) and (b) are not repealed.
Added by Laws 1980, c. 323, § 9-102, eff. July 1, 1980.
§40-9-103. Transitional provisions.
TRANSITIONAL PROVISIONS. (1) Notwithstanding the repeal of the Oklahoma Employment Security Act by Section 9-102 of this act, all liabilities accruing thereunder, including both civil and criminal liabilities, including but not limited to liabilities for contributions, liabilities for refunds, liabilities for repayment and liabilities for interest and penalties, shall not be extinguished by the repeal of the Oklahoma Employment Security Act and such liabilities shall be liabilities under this act and shall be administered and enforced as liabilities under this act.
(2) Unemployment experience, wage records and contribution records under the Oklahoma Employment Security Act, 40 O.S. 1971, Section 211 through Section 238.1, both inclusive, as amended, shall be deemed and shall constitute the same things under this act unless and except this act expressly provides otherwise.
Added by Laws 1980, c. 323, § 9-103, eff. July 1, 1980.
§40-9-104. Emergency.
EMERGENCY. It being immediately necessary for the preservation of the public peace, health and safety, an emergency is hereby declared to exist, by reason whereof this act shall take effect and be in full force from and after its passage and approval.
Added by Laws 1980, c. 323, § 9-104, eff. July 1, 1980.
§4011. Branch office at Tulsa.
The Commissioner of Labor is hereby authorized to establish a branch office to be located in Tulsa, Oklahoma.
Laws 1981, c. 246, § 6, emerg. eff. June 25, 1981.
§4035. Labor commissioner to report fees and fines.
The Commissioner of Labor shall, at the end of each quarter, make an itemized account of all monies received by him from fees and fines under the provisions of this article, and pay the same into the State Treasury.
R.L.1910, § 3727.
§4038. Witnesses Attendance.
In case of refusal of any person to comply with the order of the Commissioner or subpoena issued by him, or the refusal of any witness to testify to any matter regarding which he may be lawfully interrogated, or refusal to permit any inspection as aforesaid, the District Judge of the district in which the person resides, on application of the Commissioner, shall compel obedience by attachment proceedings as for contempt.
Laws 1917, c. 181, p. 340, § 3.
§4046. Refusal of service to employer not fulfilling contracts.
The Commissioner of Labor shall, after having determined by investigation that any employer in this state is not fulfilling contracts made through employment agents, order all employment agents in the state to refuse further service to such employer. Any employment agent violating this section shall be subject to the penalties as provided in Section Two (2) and Twelve (12) of this act.
Laws 1917, c. 181, p. 342, § 11.
§4047. Bringing in or transferring persons for purpose of employment through employment agency.
Every person, company, corporation or association doing business in this state, who shall have persons brought into this state or transferred from one point to another within the state, for the purpose of employment through or by means of any employment agency operating in this or any other state, shall immediately fulfill the terms of the contract made between such persons shipped in for the purpose of employment and the employment agency, or shall, within twelve (12) hours after the arrival of such persons desiring employment, in case of failure or refusal to furnish such employment provide such persons with transportation to their original starting point, and such meals and lodging as may be necessary for the proper sustenance of such persons until they arrive at their destination. Failure to comply with this section shall subject the offending parties to a fine of not less than Fifty Dollars ($50.00), nor more than One Hundred Dollars ($100.00) for each offense.
Laws 1917, c. 181, p. 342, § 12.
§4052. Definitions.
For the purpose of and when used in this act:
(a) The "Administrator" of this act shall be the Commissioner of Labor.
(b) "Director" shall mean the Deputy appointed by the Administrator to supervise administration of this act.
(c) "Employee", as used in this act, shall mean any person performing or applying for work or service of any kind or character for hire.
(d) "Employer" shall mean any person employing or seeking to employ any person for hire.
(e) "Fees" shall mean anything of value, including any money or other valuable consideration exacted, charged, collected or received directly or indirectly, or paid or promised to be paid for any services or act described or enumerated in subsection (g) of this section.
(f) "Employment" shall mean the act of employing or state of being employed, engaged, or hired.
(g) "Private employment agency" shall mean any business operated in this state by any person, firm or corporation for profit which secures employment or by any form of advertising holds itself out to applicants as able to secure employment or to provide information or service of any kind purporting to promote, lead to or result in employment for the applicant with any employer other than itself, where any applicant may become liable for the payment of a fee to the private employment agency, either directly or indirectly. "Private employment agency" does not include:
(1) Any educational, religious, charitable, fraternal or benevolent organization which charges no fee for services rendered in securing employment or providing information about employment; or
(2) Any employment service operated by this state, the Government of the United States, or any city, county, or town, or any agency thereof; or
(3) Any temporary help service that at no time advertises or represents that its employee, with the approval of the temporary help service, may be employed by one of its client companies on a permanent basis; or
(4) Any newspaper of general circulation or other business engaged primarily in communicating information that does not purport to adapt the information provided to the needs or desires of an individual subscriber; or
(5) Employment offices that charge no fee to the applicant other than union dues or to the employer and which are used solely for the hiring of employees under a valid union contract by the employer subscribing to this contract; or
(6) Any organization that charges fees only for services other than securing employment, provided that such services are performed pursuant to a contract which includes a statement, in a type size no smaller than ten point, directly above the place for the signature of the client that reads as follows: "I have read and received a copy of this contract which I understand makes me legally obligated to pay a fee, I further understand that this contract does not guarantee employment"; or
(7) Resume services whose service includes only the preparation and production of resumes, and does not purport to offer services that will result in employment; or
(8) A person employing individuals to render parttime or temporary personal services to, for, or under the direction of a third person, if the person employing the individuals, in addition to wages or salaries, pays federal social security taxes, state and federal unemployment insurance, carries workers' compensation insurance as required by state law, and has responsibility for the acts of his employees while rendering services to or under the direction of a third person.
(h) "Temporary employment" shall mean any period of employment terminating at any time within sixty (60) days from date of employment.
(i) "Permanent employment" shall mean all employment exceeding sixty (60) days duration.
(j) "Person" shall mean any individual, copartnership, corporation, or other legal entity.
Amended by Laws 1988, c. 250, § 1, emerg. eff. June 27, 1988. der
§4053. Licenses.
(a) No person shall open, operate or maintain an employment agency in the State of Oklahoma without first procuring a license from the Administrator. Any person who shall open or conduct any such agency without first having procured a license shall be guilty of a misdemeanor and, upon conviction, shall be punished as provided in Section 57 of this title. Application for the first license to be issued to any employment agency following the effective date of this act shall be accompanied by a fee of Two Hundred Fifty Dollars ($250.00); renewal applications for a license to be issued to any employment agency shall be accompanied by a fee of Two Hundred Fifty Dollars ($250.00). The license fee shall not be returnable, and shall be placed in the General Revenue Fund of the State Treasury.
(b) Every applicant for a license shall have been a resident of the State of Oklahoma for at least one (1) year immediately preceding the filing of such application, and shall have had at least one (1) year of experience as a placement counsellor in a licensed employment agency either within or without the state. In the case of corporation applicants, at least one of the incorporators and one of the principal officers thereof, together with the person who is to be responsible for the general management of the office shall meet the above requirements as to Oklahoma residence and experience.
(c) Every applicant for a license shall file with the Administrator a written application stating the name and address of the applicant; the street and number of the building in which the employment agency is to be conducted; the name of the person who is to be responsible for the general management of the office; the names and addresses of all those financially interested therein; the name under which the business is to be conducted; whether or not the applicant is pecuniarily interested in any other business or businesses, and if so the nature of same and where carried on. Said applicant shall also state on the application whether or not he is engaged at the time of making application or at any previous time has been engaged or financially interested in an employment agency business in Oklahoma or any other state; and, if so, the name and address of such employment agency or agencies and the dates he was so engaged or interested. If applicant is now or has previously been employed in any employment agency he shall state the name and address of such agency, the name of the person conducting such agency, the dates employed, and in what capacity. All applications shall be sworn to, under oath, and shall remain confidential in the files of the Administrator.
(d) All applicants shall clearly state if they have operated or been employed by an employment agency in Oklahoma or any other state within the past fifteen (15) years and, if so, under what authority; and if ever cited for cause, give the final disposition of said breach of law or regulations charged governing such employment agency or employment. If applicant should be found guilty of perjury as to any material fact, after issuance of a license by the State of Oklahoma, after exhaustion of applicant's right of appeal, the Administrator shall rescind such license immediately thereafter, and no license shall subsequently be issued to such applicant.
(e) The applicant shall give as reference the names and addresses of at least three (3) persons of reputed business or professional integrity. If applicant is a corporation, the application shall state the names and addresses of the officers and directors of said corporation and shall be signed and sworn to by the president and secretary, with seal affixed. If applicant is a copartnership, the application shall state the names and addresses of all partners therein and shall be signed and sworn to by all of them. The Administrator or Director shall be qualified to take sworn statements of applicants, under oath.
(f) Upon the filing of an application for the first license after the effective date of this act, as herein provided, the Administrator shall cause an investigation to be made of the applicant and all those financially interested therein, such investigation to be made by appropriate state agencies and other sources of information, and shall finally rule thereon within thirty (30) days after the application is filed. Unless the application shall be rejected by the Administrator on the grounds that the applicant or associated party or parties have been convicted of a felony, or for other good and sufficient reason within the meaning and purpose of this act, the same shall be granted. If the application is rejected, the Administrator shall state in the written order the specific reasons for such rejection. That there are already an adequate number of licensed employment agencies shall not be grounds for rejecting a license application. An appeal from an order of the Administrator rejecting an application for any reason other than conviction of a felony may be taken to the superior or district court of the county of applicant's residence, in accordance with the general statute of the state governing appeals from decisions of administrative agencies in individual proceedings.
(g) A detailed report of such investigation and the action taken thereon by the Administrator shall be made in writing and become a part of the official records in the Administrator's office.
(h) Every initial application for a license shall be accompanied by a bond in the sum of Five Thousand Dollars ($5,000.00), issued by a duly licensed surety company authorized to do business in Oklahoma, to be approved by the Administrator and filed of record in his office, which bond shall be conditioned upon the applicant's complying with all the provisions of this act. Upon completion of one (1) year of operation, the amount of the bond shall be reduced to Three Thousand Dollars ($3,000.00) and shall remain fixed at that amount until the completion of two (2) years of operation, at which time, the amount of the bond shall be reduced to One Thousand Dollars ($1,000.00). The bond shall remain at One Thousand Dollars ($1,000.00) so long as the agency remains under the management of the originally licensed operator. If at any time, in the opinion of the Administrator, any of the sureties shall become irresponsible the person holding the license shall, upon written notice and demand from the Administrator, furnish a new bond, subject to the provisions of this section. Failure to furnish a new bond within fifteen (15) days after receipt of such notice and demand shall, in the discretion of the Administrator, constitute just cause for revocation of such license, and each license when revoked shall be obtained by the Administrator for cancellation.
(i) There shall appear on the license the name of the licensee, the location of the office where the employment agency is to be conducted, the name of the person who is to be charged with the general management and the precise name under which the employment agency is to be carried on. In the event of a change in location the Administrator shall be notified of same within ten (10) days and the license shall be endorsed to show the correct address. Each license shall be numbered and dated and posted in a conspicuous place in the office of the employment agency.
(j) In the event the services of the person charged with the general management of the employment agency are terminated within the license year, the licensee shall so advise the Administrator and the name of the person taking over the management shall be substituted on the license for that of the former manager so that at all times the person charged with general management of the employment agency shall be known to the Administrator and shall appear on the license.
(k) Every license shall remain in force for twelve (12) months next after its issuance, unless sooner surrendered, suspended or revoked.
(1) The Administrator shall notify all license holders of the expiration date of their licenses at least ten (10) days prior thereto, and application for renewal shall be accompanied by the required license fee and bond.
(m) In the event the Administrator shall find that an employment agency has violated any of the provisions of this act, or that any other good and sufficient reason therefor has arisen within the meaning and purpose of this act, he may suspend or revoke said license or refuse to grant a new license upon the termination thereof; but in any case no action shall be taken until a written notice has been served on said employment agency specifying the charges against said agency, and a fair public hearing, in which the procedure prescribed for individual proceedings by the general administrative procedure acts of the state shall apply wherever not in conflict with the specific procedures herein prescribed, has been given same within thirty (30) days after such written notice has been posted by registered mail to the licensee. If, after such hearing, the Administrator shall find cause to suspend, revoke or refuse to issue a license, the employment agency shall be given written notice of the Administrator's decision and the basis therefor, which decision shall become final at the end of thirty (30) days from the date of such notice, unless during the said thirtyday period the licensee shall take an appeal to the superior or district court of the county in which the license was issued from the Administrator's order, with opportunity for stay as provided in the general statutes of the state governing appeals from administrative orders in individual proceedings. All appeals from the Administrator's decisions and orders shall be taken in the manner prescribed by law.
(n) Every complaint against an employment agency shall be made in writing to the Administrator and shall be thoroughly investigated. A complete record of the investigation and disposition of the complaint shall be made and become a permanent record in the Administrator's office. Whenever, for any cause, a license is revoked, the Administrator shall not within two (2) years from the date of such revocation issue another license to the person whose license has been revoked.
(o) No license granted under the terms of this act shall be transferable, but an employment agency may, with the approval of the Administrator, at any time incorporate or admit a partner or partners to the business, or make changes in the corporate name, or sell the business; but no employment agency shall permit any person not mentioned in the application for license to become connected with such agency, either as a partner or as an officer of a corporation, unless the Administrator's written consent thereto shall first have been obtained. Such consent may be withheld only for any reason for which an original application for license might have been rejected if the person or persons in question had been mentioned therein. Nothing in this act shall be construed to prevent any executor, administrator or heir of a deceased licensee from carrying on the employment agency's business for the remainder of the period for which licensed, or pending its sale to a qualified purchaser.
(p) No sale of a franchise for an agency operation in Oklahoma shall be legal, or enforceable in the courts of this state, unless and until the qualifications of such franchise purchaser shall first have been submitted to the Administrator as a prospective licensee under the provisions of this act, and approved by the Administrator.
Laws 1967, c. 384, § 2, emerg. eff. May 23, 1967; Laws 1974, c. 62, § 1; Laws 1993, c. 270, § 46, eff. Sept. 1, 1993.
§4054. Fees.
(a) The service fee charged for helping to secure permanent employment shall be not to exceed the following schedule: Fifteen percent (15%) of the first full month's gross compensation if the position pays Seventynine Dollars and ninetynine cents ($79.99) or less; twenty percent (20%) of the first full month's gross compensation if the position pays Eighty Dollars ($80.00) through One Hundred Nineteen Dollars and ninetynine cents ($119.99); thirty percent (30%) of the first full month's gross compensation if the position pays One Hundred Twenty Dollars ($120.00) through One Hundred Fortynine Dollars and ninetynine cents ($149.99); forty percent (40%) of the first full month's gross compensation if the position pays One Hundred Fifty Dollars ($150.00) through Two Hundred Seventyfour Dollars and ninetynine cents ($274.99); fortyfive percent (45%) of the first full month's gross compensation if the position pays Two Hundred Seventyfive Dollars ($275.00) through Four Hundred Ninetynine Dollars and ninetynine cents ($499.99). For procuring employment paying gross compensation of Five Hundred Dollars ($500.00) or more per month, the fee shall be determined by written agreement between all parties concerned. The fee schedule shall be posted in a conspicuous place in each employment agency office.
(b) In no event shall the fee for temporary employment exceed that for permanent placement. Any period of employment terminating at any time within sixty (60) days from the date of employment shall constitute temporary employment and a fee of not more than twenty percent (20%) of the amount earned shall be charged. All employment exceeding sixty (60) days' duration shall be considered a permanent placement. No licensed employment agency shall collect a fee before an applicant has obtained employment. No fee shall be charged for registering with an employment agency or for instituting a search or investigation, or for other employmentrelated aids. Where the remuneration is in the form of a straight commission, the first three (3) months' gross earnings shall be divided by three to establish an average monthly compensation against which to compute the fee. No finance company or other purchaser of employment contracts shall be considered a holder in due course of such paper until after the temporary employment period shall have run and permanent employment shall have been established, and in no event shall the applicant for employment be liable for any charge to a finance company in addition to the legal placement fee as hereinabove set forth.
(c) This section shall not apply to an employment agency acting as a search consultant that is retained and compensated solely by the employer on a retainer or consulting basis.
Amended by Laws 1982, c. 313, § 1, operative Oct. 1, 1982.
§4055. Rules and regulations.
(a) Every employment agency shall enter into a written agreement with every applicant for services to be rendered and the time and method of payment, and on which there shall appear the definition of "Temporary Employment", "Permanent Employment" and "Method of Payment". Provided, that nothing herein shall be construed to prohibit an employment agency from making arrangements by wire or telephone without said employee having first entered into a written agreement with the agency; and provided further, if by oversight or intention an applicant fails to sign an employment contract, but is placed and accepts such employment, the employment agency shall be entitled to its fee for such placement. Every employment agency shall provide the applicant with a copy of any written agreement between the applicant and the agency. All contracts or agreements shall clearly state the fee and in no case shall the employment agency collect more than the stated fee or agreed percentage of the first year's total income.
(b) In all instances wherein permanent employment is terminated within the definition of temporary employment, every employment agency shall give to every person from whom an overpayment of fee has been received, if requested within six (6) months of such termination, a refund in the amount of such overpayment, such refund to be made promptly within ten (10) days following the agency's receipt of verification from the employer of the inclusive dates of employment and the total gross earnings of the employee. This subsection shall not apply to any employment agency acting as a search consultant that is retained and compensated solely by the employer on a retainer or consulting basis.
(c) Every employment agency shall give to every person from whom a payment is received for services or assistance rendered or to be rendered a receipt bearing the name and address of the employment agency, the name of the employee, amount of the payment, date of payment, and for what it is paid. Each such receipt shall be numbered and bound in duplicate form. The duplicate copy shall be kept for two (2) years at the office of the employment agency.
(d) A record shall be kept of the name and address of every employee accepting employment, the name and address of the employer with whom employment is accepted, the nature of the employment, the rate of wage or salary to be paid the employee, the amount of the employment agency's service charge, the dates and amounts of payments, the date and amount of refund, if any, and for what, together with a space for remarks under which shall be recorded anything of an individual nature to amplify the foregoing account or record and as information in the event of any question arising concerning the transaction. Such records shall be open to inspection by the Administrator or Director during business hours, at the address where the employment agency is conducted, for the purpose of enforcing the provisions of this act. The Administrator may also by rules and regulations require reports from all agencies giving information on job placements, monthly or quarterly, both within and without the state, and classified by type of employment, to conform generally with employment data gathered and published by the Oklahoma Employment Security Commission.
(e) The Administrator may require of the employment agency against whom a written complaint is made, a detailed account in writing, under oath, of the transaction referred to in the complaint.
(f) No employment agency shall direct an applicant to employment without having obtained, either orally or in writing, permission or authorization of the employer. No applicant for employment shall be required by any agency to list prospective employers to whom he shall previously have been referred by other agencies.
(g) No applicant for employment shall knowingly make false or misleading statements to an employment agency regarding age, education, training, experience or references; and no employment agency shall be held responsible for misinformation given it by an applicant and transmitted by it in good faith to an employer.
(h) No employment agency shall advertise openings for which it does not hold orders from employers or knowingly cause to be printed, published or circulated misleading, false or fraudulent information about employment opportunities.
(i) Other than the prescribed placement fee, no employment agency shall require either the employee or employer to contribute to the cost of its employmentrelated services, advertising, or incidental expenses. This subsection shall not apply to any employment agency acting as a search consultant that is retained and compensated solely by the employer on a retainer or consulting basis.
(j) No employment agency shall place, or cause to be placed, promotional advertising in any media without licensee's identification as to agency and address.
(k) No employment agency shall send any person to a prospective employer who is conducting a "lockout" against all or part of his employees, or whose employees or a part of them are out on strike, without first apprising said person of the existence of such lockout or strike.
(1) Any licensed agency, or agent thereof, who shall be guilty of dividing fees with any superintendent, manager, foreman or other employees of any person, company, corporation or association for whom employees are furnished, shall be guilty of a misdemeanor and, upon conviction, shall be punished as provided in Section 57 of this title.
(m) No licensed agency shall furnish employment to or refer any child to any vocation or establishment in violation of the laws regulating the labor of children or their compulsory attendance at school.
(n) No employment agency shall discriminate in the employment of its personnel because of the race, national origin, sex or religious belief of the applicant seeking employment with the agency.
Amended by Laws 1982, c. 313, § 2, operative Oct. 1, 1982.
§4057. Enforcement Rules and regulations.
It shall be the duty of the Administrator and/or Director to enforce the provisions of this act. When informed of any violation thereof it shall be his duty to investigate same, and he may institute criminal proceedings for enforcement of this act, or apply to any court of competent jurisdiction and/or the Attorney General in order to seek injunctive relief on behalf of the State of Oklahoma. In order to make more effective the foregoing statutory provisions and rules and regulations, the Administrator is hereby authorized to prepare and promulgate such rules and regulations as may from time to time be deemed necessary, not inconsistent with the provisions of this act. A violation of such rules and regulations shall be deemed to be a violation of this act, and any person convicted of violating the provisions of this act shall be guilty of a misdemeanor and shall be fined not less than Fifty Dollars ($50.00), nor more than One Hundred Dollars ($100.00), or the fee charged for the service, whichever is greater, for each offense, or be imprisoned in the county jail for a period of not exceeding six (6) months, or both such fine and imprisonment, at the discretion of the court.
Laws 1967, c. 384, § 6, emerg. eff. May 23, 1967; Laws 1974, c. 62, § 3.
§40-61. Disclosure of information by employer - Presumption of good faith - Immunity from liability.
A. An employer may disclose information about a current or former employee's job performance to a prospective employer of the current or former employee upon request of the prospective employer and with consent of the current or former employee, or upon request of the current or former employee. A state agency, as defined in Section 840-2.5 of Title 74 of the Oklahoma Statutes, may disclose information regarding a current or former employee's job performance to another state agency which is a prospective employer of the current or former employee without the employee's consent. The employer is presumed to be acting in good faith, unless lack of good faith is shown by a preponderance of the evidence. The current or former employer shall be immune from civil liability for the disclosure or any consequences of such disclosure unless the presumption of good faith is rebutted upon a showing that the information disclosed by the current or former employer was false and the employer providing the information had knowledge of its falsity or acted with malice or reckless disregard for the truth.
B. The provisions of this section shall apply to any employee, agent, or other representative of the current or former employer, including a state agency, who is authorized to provide and who provides information in accordance with the provisions of this section.
C. Failure to comply with any provision of this section shall not give rise to any liability or causes of action which did not exist prior to July 1, 1995. This section shall only apply to causes of action accruing on and after July 1, 1995.
Added by Laws 1995, c. 340, § 22, eff. July 1, 1995. Amended by Laws 1998, c. 235, § 1, eff. July 1, 1998.
§4071. Restrictions on employment of children under sixteen.
No child under the age of sixteen (16) shall be permitted to work in any occupation or in any establishment other than those occupations permitted by the "Fair Labor Standards Act of 1938", as amended, 29 U.S.C., Sections 201 through 219, and any regulations related thereto.
It shall be the duty of the Commissioner of Labor upon investigation by himself or the agents of his department, or upon the complaint of the Board of Health, to determine what occupations are injurious to health or morals or especially hazardous to life or limb, and to notify employers in such occupations of his decision, which decision shall be final until such occupations shall be defined by law or by final judgment in a court of competent jurisdiction as safe for health, morals, life or limb.
R.L.1910, § 3728; Laws 1929, c. 35, p. 35, § 1; Laws 1978, c. 244, § 11, eff. July 1, 1978; Laws 1991, c. 172, § 1, eff. Sept. 1, 1991.
§40-72. Repealed by Laws 1991, c. 172, § 15, eff. Sept. 1, 1991.
§40-72.1. Occupations prohibited for children under sixteen.
A. No child under sixteen (16) years of age shall be employed or permitted to work at any of the following occupations:
1. Manufacturing, mining, or processing occupations, including occupations requiring performance of any duties in work rooms or work places where goods are manufactured, mined, or otherwise processed;
2. Occupations which involve the operation or tending of hoisting apparatus or of any power-driven machinery other than office machines;
3. The operation of motor vehicles or service as helpers on such vehicles;
4. Public messenger service;
5. Occupations declared to be particularly hazardous to the health and well-being of minors under sixteen (16) years of age by federal laws and regulations or as declared by the Commissioner of Labor; and
6. Occupations, except office work or sales work, in connection with:
a. transportation of persons or property by rail, highway, air, water, pipeline or other means;
b. warehousing and storage;
c. communications and public utilities; and
d. construction including demolition and repair.
B. This section shall not apply to:
1. children working either on farms or for parents or any entity in which a parent owns an equity interest; or
2. children engaged in the sale or delivery of newspapers to consumers.
Added by Laws 1991, c. 172, § 2, eff. Sept. 1, 1991; Laws 1991, c. 295, § 4, eff. Sept. 1, 1991.
§40-73. Repealed by Laws 1991, c. 172, § 15, eff. Sept. 1, 1991.
§4074. Educational qualifications required of child before employment.
No child under the age of sixteen (16) years shall be employed or permitted to work in any of the occupations specified in Section 71 of this title unless such child is able to read and write, or shall have attended some school during the preceding year for the time that attendance is compulsory under the laws.
R.L.1910, § 3731; Laws 1991, c. 172, § 3, eff. Sept. 1, 1991.
§40-75. Hours of employment of children - Rest periods.
A. No child under the age of sixteen (16) years shall be employed or permitted to work in any gainful occupation, other than agriculture or domestic service, for more than:
1. Three (3) hours in any one (1) school day, except that if the employer is not covered by the Fair Labor Standards Act, a child may work eight (8) hours or less on a school day which precedes a nonschool day;
2. Eight (8) hours on a nonschool day;
3. Eighteen (18) hours in any one (1) week when school is in session; or
4. Forty (40) hours in any one (1) week when school is not in session, except that if the employer is not covered by the Fair Labor Standards Act, a child may work forty (40) hours in any one (1) week when school is in session if attendance is not compulsory.
B. As used in this section, "in session" means the period beginning on the first Tuesday after Labor Day through May 31 of the following year.
C. Children under the age of sixteen (16) years must be permitted a one (1) hour cumulative rest period for each eight (8) consecutive hours worked. However, no such child shall work more than five (5) consecutive hours unless permitted a one-half (1/2) hour cumulative rest period.
R.L. 1910, § 3732. Amended by Laws 1991, c. 172, § 4, eff. Sept. 1, 1991; Laws 1993, c. 137, § 1, eff. Sept. 1, 1993; Laws 1997, c. 391, § 8, eff. July 1, 1997.
§4076. Night work.
No person under the age of sixteen (16) years shall be employed or permitted to work in any of the occupations set out in Section 71 of this title between the hours of seven o'clock p.m. and seven o'clock a.m.; except, during the summer (June 1 through Labor Day) and, if the employer is not covered by the Fair Labor Standards Act, during the remainder of the year on days followed by a nonschool day when the prohibited hours will be between the hours of nine o'clock p.m. and seven o'clock a.m.
R.L. 1910, § 3733; Laws 1929, c. 35, p. 35, § 2; Laws 1955, p. 240, § 1; Laws 1976, c. 151, § 1; Laws 1991, c. 172, § 5, eff. Sept. 1, 1991; Laws 1993, c. 137, § 2, eff. Sept. 1, 1993.
§4077. Schooling certificates Duties of employers.
Before any child under the age of sixteen (16) years shall be employed in any occupation specified in Section 71 of this title, it shall be the duty of the parent or guardian of such child to procure and furnish the employer of such child an age and schooling certificate as hereinafter provided in this article. It shall be the duty of every person, firm or corporation owning or operating any of the establishments specified in Section 71 of this title, or employers in such occupation, to keep on file for the inspection of the Commissioner or his designee, truant officers, or other persons charged with the administration of this article, such age and schooling certificate, for every child under sixteen (16) years of age employed in such occupation, and to keep on file where such children are employed a register with a complete list of children under sixteen (16) years of age so employed, together with the age of each child as set forth in the age and schooling certificate opposite the name of such child, and also to keep on file in such place or establishment, in such form as the Commissioner or his designee may prescribe, the time of opening and closing of such factory or other establishment, the number of hours of labor required or permitted in such establishment, the hours of commencing and stopping work, and the time allowed for meals, and, if there be two or more shifts in such establishment, the number of hours in each shift during which the employees are required or permitted to work. On termination of the employment of a child so registered, and whose certificate is so filed, such certificate shall be forthwith surrendered by the employer to the child or its parent, guardian or custodian; provided that this section shall not apply to the employment of children who are not residents of the State of Oklahoma, to perform in any duly licensed theatre, motion picture theatre or other place of public amusement.
R.L.1910, § 3734; Laws 1929, c. 35, p. 36, § 3; Laws 1991, c. 172, § 6, eff. Sept. 1, 1991.
§4078. Evidence of age of child Certificate of physical fitness.
The Commissioner or his designee, truant officer, or other person charged with the administration of this article, may make demand on an employer in whose factory or establishment a child apparently under the age of sixteen (16) years is employed or permitted or suffered to work, and whose employment certificate is not then filed as required by this section, that such employer shall either furnish him, within ten (10) days, evidence satisfactory to him that such child is in fact over sixteen (16) years of age, or shall cease to employ or permit or suffer such child to work in such factory or establishment. Such officer may require from such employer the same evidence of age of such child as is required on the issuance of an employment certificate; and the employer furnishing such evidence shall not be required to furnish any further evidence of the age of the child. In case such employer shall fail to produce and deliver to such officer, within ten (10) days after such demand, such evidence of age herein required by him, and shall thereafter continue to employ such child to work in such factory or establishment, proof of the giving of such notice and of such failure to produce and file such evidence shall be prima facie evidence in any prosecution brought for violation of this provision of this article that such child is under sixteen (16) years of age and is unlawfully employed: Provided, that the Commissioner or his designee shall have the power to demand a certificate of physical fitness from some licensed physician in good standing in this state in case of children who may appear to him physically unable to perform the labor at which they may be engaged, and shall have power to prohibit the employment of any minor that cannot obtain such a certificate.
R.L.1910, § 3735; Laws 1991, c. 172, § 7, eff. Sept. 1, 1991.
§4079. Age and schooling certificates Proof of age.
The age and schooling certificate shall be approved by the principal, headmaster, or equivalent administrative officer of the school which the child attends or should be attending or by one of the child's parents if the child is being schooled at home, who shall, for the purpose of this article, be empowered to administer an oath. The principal, headmaster, or equivalent administrative officer of the school which the child attends or should be attending or by one of the child's parents if the child is being schooled at home, shall approve such certificate only upon the application in person of the child desiring employment accompanied by its parents, guardian or custodian, and after having received, examined and approved documentary evidence of age, showing that the child is fourteen (14) years of age, or over, which evidence shall consist of one of the following named proofs of age, duly attested, and the proof accepted shall be specified in the certificate issued to the child; the proof specified in subdivision (a) shall be required first, but if this is not available then one of the proofs specified in the succeeding subdivisions shall be required and in the order designated until the age of the child be established, as follows:
(a) A birth certificate or transcript thereof issued by a registrar of vital statistics or other officer charged with the duty of recording births which certificate or transcript thereof shall be prima facie evidence of the age of the child.
(b) A certificate of baptism or transcript thereof, showing the date of birth and place of baptism of the child.
(c) A passport showing the age of the child; or a certificate of arrival in the United States, issued by the United States immigration officer and showing the age of the child; or a life insurance policy at least one (1) year old showing the age of the child or other credible evidence as may be approved by the Commissioner.
Every employment certificate shall be signed, in the presence of the officer issuing the same by the child in whose name it is issued.
R.L.1910, § 3736; Laws 1917, c. 182, p. 344, § 1; Laws 1991, c. 172, § 8, eff. Sept. 1, 1991.
§4080. School attendance certificate to be presented Duplicate of schooling certificate Blank form Form of certificate.
The age and schooling certificate shall not be approved until the parent or guardian of such child shall present a school attendance certificate as hereinafter prescribed. A duplicate of such age and schooling certificate shall be filled out and sent by the school officer, before whom the same is made, to the Commissioner of Labor. The blank forms for school attendance certificate and for the age and schooling certificate shall be supplied to the principal, headmaster, or equivalent administrative officer of the school or to one of the child's parents if the child is being schooled at home by the State Superintendent of Public Instruction as hereinafter indicated.
SCHOOL ATTENDANCE CERTIFICATE.
.................. (Name of School).
.................. (City and County).
....................... (Date).
This certifies that ................ (name of child) can read and write and that according to the records of this school and in my belief is now ............. (number of years and months) old, and has attended school during the full school term of the preceding year.
.................. (Name of parent or guardian).
.................. (Residence).
................. (Signature of teacher).
AGE AND SCHOOLING CERTIFICATE.
This certifies that I am .............. (father, mother or guardian) of ........... (name of child) s.s.# ..............., and that he (or she) was born at ............. (town or city), .......... (county), .............. (state or country), on the ........ (day, month and year of birth), and is now ............... (number of years and months old).
.....................................
(Signature of parent or guardian).
.......................... (Date).
.................... (City or town or county).
Personally appeared before me the abovementioned ............ (name of person signing), and made oath that the foregoing certificate is true to the best of his (or her) knowledge and belief.
I hereby approve the foregoing certificate of ............. (name of child), height ............. (feet and inches), weight ........... (pounds), complexion ........... (fair or dark), hair ............. (color), eyes .......... (color), having no sufficient reason to doubt that he (or she) is of the age therein certified.
OWNER OF CERTIFICATE.
This certificate belongs to ............. (name of child), and is to be surrendered to him (or her) whenever he (or she) leaves the service of the employer holding the same, but if not claimed by said child within thirty days after leaving said service, shall be sent to the Commissioner of Labor.
..................................,
(Signature of officer, with name of city,
town or county, and date.)
R.L.1910, § 3738; Laws 1991, c. 172, § 9, eff. Sept. 1, 1991.
§40-81. Repealed by Laws 1991, c. 172, § 15, eff. Sept. 1, 1991.
§40-82. Repealed by Laws 1991, c. 172, § 15, eff. Sept. 1, 1991.
§40-83. Repealed by Laws 1991, c. 172, § 15, eff. Sept. 1, 1991.
§40-84. Repealed by Laws 1991, c. 172, § 15, eff. Sept. 1, 1991.
§40-85. Repealed by Laws 1991, c. 172, § 15, eff. Sept. 1, 1991.
§40-86. Repealed by Laws 1991, c. 172, § 15, eff. Sept. 1, 1991.
§40-87. Repealed by Laws 1991, c. 172, § 15, eff. Sept. 1, 1991.
§40-88. Penalties for violating this chapter.
Any person who is in willful violation of any of the provisions of Section 71 et seq. of this title shall, upon conviction, be guilty of a misdemeanor and, for each offense, shall be subject to a fine of not more than Five Hundred Dollars ($500.00), or imprisonment for not less than ten (10) nor more than thirty (30) days, or both such fine and imprisonment.
R.L.1910, § 3742. Amended by Laws 1991, c. 172, § 10, eff. Sept. 1, 1991; Laws 1997, c. 391, § 9, eff. July 1, 1997.
§40-89. Enforcement of chapter - Administrative penalties.
A. It shall be the duty of the Commissioner of Labor to enforce the provisions of Section 71 et seq. of Title 40 of the Oklahoma Statutes.
B. 1. In addition to any other penalty prescribed by law, any person who is in violation of Section 71 et seq. of Title 40 of the Oklahoma Statutes shall be liable for an administrative fine, to be assessed by the Commissioner of Labor, of not more than One Hundred Dollars ($100.00) for each offense. The maximum administrative fine shall not exceed One Thousand Dollars ($1,000.00) for all related violations. All administrative fines collected pursuant to this section shall be deposited in the Department of Labor Revolving Fund, created pursuant to Section 141.19 of Title 40 of the Oklahoma Statutes.
2. In lieu of the penalty provided for in paragraph 1 of this subsection, the Commissioner or a representative of the Commissioner may issue a warning for a first offense to a person who is in violation of Section 71 et seq. of Title 40 of the Oklahoma Statutes. The warning shall cite the violation committed by the person and, where appropriate, state the time period in which the violation must be remedied.
C. After a violator is cited or fined for two unrelated offenses of failure to comply with the provisions of Section 71 et seq. of Title 40 of the Oklahoma Statutes, the Commissioner of Labor shall have the authority to issue cease and desist orders, in accordance with the rules of the Department of Labor, against the violator until such time as compliance with the provisions of Section 71 et seq. of Title 40 of the Oklahoma Statutes is met. Any order to cease and desist issued by the Commissioner may be enforced in district court. Upon application of the Commissioner, the district court may issue an injunction without bond for the purpose of enforcing this section.
D. The Commissioner of Labor shall assess and collect administrative fines incurred under subsection B of this section and, at the Commissioner's discretion, may remit, mitigate, or negotiate the fines. In determining the fine to be assessed, or the amount agreed upon in any negotiation, consideration shall be given to the appropriateness of the fine in light of the gravity of the violation and the extent to which the person charged has attempted to remedy the consequences of the violation. Individual proceedings shall be conducted pursuant to the provisions of subsection E of this section.
E. For the purpose of determining if an administrative fine should be assessed, a hearing shall be conducted in accordance with the provisions of the Administrative Procedures Act, by a hearing officer designated by the Commissioner of Labor. A final order by the hearing officer may be appealed to the district court in the county in which the violation occurred pursuant to the provisions of the Administrative Procedures Act.
Added by Laws 1997, c. 391, § 10, eff. July 1, 1997.
§40-141.1. Short title - Definitions.
This act shall be known and may be cited as the "Boiler and Pressure Vessel Safety Act", and, except as otherwise herein provided, shall apply to all boilers and pressure vessels. For the purpose of this act, the following definitions apply:
1. "Boiler" means a closed vessel in which water is heated, steam is generated, steam is superheated, or any combination thereof, under pressure or vacuum, for external use to itself, by the direct application of heat. The term "boiler" includes fired units for heating or vaporizing liquids other than water where these units are separate from processing systems and complete within themselves:
a. "power boiler" means a boiler in which steam or other vapor is generated at a pressure of more than fifteen (15) pounds per square inch gauge, or as further defined in American Society of Mechanical Engineers Boiler and Pressure Vessel Code Section I,
b. "hightemperature water boiler" means a water boiler intended for operation at pressures in excess of one hundred sixty (160) pounds per square inch gauge; or temperatures in excess of two hundred fifty degrees Fahrenheit (250° F), or as further defined in American Society of Mechanical Engineers Boiler and Pressure Vessel Code Section I,
c. "low pressure steam boiler" means a steam boiler operating at pressures not exceeding fifteen (15) pounds per square inch gauge, or as further defined in American Society of Mechanical Engineers Boiler and Pressure Vessel Code Section IV,
d. "hot water heating boiler" means a heating boiler operating at pressures not exceeding one hundred sixty (160) pounds per square inch gauge one thousand one hundred three (1,103) kilopascals and/or temperatures not exceeding two hundred fifty degrees Fahrenheit (250° F), one hundred twentyone degrees Celsius (121° C), at or near the boiler outlet, or as further defined in American Society of Mechanical Engineers Boiler and Pressure Vessel Code Section IV,
e. "hot water supply boiler" means a supply boiler operating at pressures not exceeding one hundred sixty (160) pounds per square inch gauge one thousand one hundred three (1,103) kilopascals and/or temperatures not exceeding two hundred fifty degrees Fahrenheit (250° F), one hundred twentyone degrees Celsius (121° C), at or near the boiler outlet, or as further defined in American Society of Mechanical Engineers Boiler and Pressure Vessel Code Section IV, and
f. "hot water supply heater" means a closed vessel in which water is heated by the combustion of fuels, electricity or any other source and withdrawn for use external to the system at pressures not exceeding one hundred sixty (160) pounds per square inch gauge and shall include all controls and devices necessary to prevent water temperature from exceeding two hundred ten degrees Fahrenheit (210° F), ninety-eight point nine degrees Celsius (98.9°C);
2. "Pressure vessel" means a vessel in which pressure is obtained from an external source or by the application of heat other than those vessels defined in paragraph 1 of this section or as further defined in American Society of Mechanical Engineers Boiler and Pressure Vessel Code Section VIII, Division I;
3. "Certificate of operation" means an annual certificate, unless otherwise provided for in this act, issued by the Commissioner of Labor permitting the operation of a boiler or pressure vessel which has been inspected as provided for in this act;
4. "Steam lines" means piping of welded construction in which steam is contained and/or transported at a pressure in excess of fifteen (15) pounds per square inch gauge; and
5. "Commissioner" means the Commissioner of Labor or the Commissioner's duly authorized representative.
Added by Laws 1982, c. 252, § 1. Amended by Laws 2003, c. 101, § 1, eff. Nov. 1, 2003.
§40141.2. Exemptions - Exhibitor boilers.
A. This act shall not apply to the following boilers, hot water heaters and pressure vessels:
1. Pressure vessels used for the transportation of compressed gases if constructed and operated in compliance with specifications and regulations of the United States Department of Transportation or of the Corporation Commission of Oklahoma and any unfired pressure vessels used as containers for liquefied petroleum gases and subject to the jurisdiction of the United States Department of Transportation or the Oklahoma Liquefied Petroleum Gas Administration or successor agencies;
2. Pressure vessels containing air located on vehicles operating pursuant to regulations of other jurisdiction authorities;
3. Pressure vessels having an internal or external operating pressure not exceeding fifteen (15) pounds per square inch gauge one hundred three (103) kilopascals gauge with no limit on size;
4. Pressure vessels having an inside diameter not exceeding six (6) inches (152mm) with no limitation on pressure;
5. Pressure vessels with a nominal water containing capacity of one hundred twenty (120) gallons or four hundred fifty (450) liters or less, to be used for domestic supply purposes, for containing water under pressure including those containing air, the compression of which serves only as a cushion;
6. Pressure vessels containing water heated by steam or other indirect means when none of the following limitations is exceeded:
a. a heat input of two hundred thousand (200,000) British thermal units per hour fiftyeight thousand six hundred (58,600) watts,
b. a water temperature of two hundred ten degrees Fahrenheit (210º F), or
c. a water containing capacity of one hundred twenty (120) gallons four hundred fifty (450) liters;
7. Pressure vessels which may be classified as pressure containers which are integral parts of components of rotating or reciprocating mechanical devices such as pumps, compressors, turbines, generators, engines and hydraulic or pneumatic cylinders where the primary design considerations and/or stresses are derived from the functional requirements of the device, or structures whose primary function is the transport of fluids from one location to another within a system of which it is an integral part, i.e., piping systems;
8. Hot water supply boilers which are directly fired with oil, gas or electricity when none of the following limitations are exceeded:
a. a heat input of two hundred thousand (200,000) British thermal units per hour fiftyeight thousand six hundred (58,600) watts,
b. a water temperature of two hundred ten degrees Fahrenheit (210º F), or
c. a water containing capacity of one hundred twenty (120) gallons four hundred fifty (450) liters;
9. Boilers and pressure vessels under federal control and railroad locomotive boilers;
10. Pressure vessels located on remote sites and limited to oil and natural gas gathering facilities or processing plants that have fewer than ten buildings intended for human occupancy per onefourth (1/4) square mile and where the closest building is at least two hundred twenty (220) yards from any vessel;
11. Pressure vessels in the care, custody and control of research facilities and used solely for research purposes which require one or more details of noncode construction or which involve destruction or reduced life expectancy of those vessels; and
12. Hot water supply heaters as defined in subparagraph f of paragraph 1 of Section 141.1 of this title, with piping connections to the potable water supply system which are intended to supply hot water for domestic or commercial purposes other than space heating. However, the Commissioner shall make routine inspections and issue necessary orders regarding existing hot water supply heaters located in facilities or installations owned or operated by the State of Oklahoma or its agencies, counties, municipalities or school districts.
B. The following boilers and pressure vessels shall be exempt from Sections 141.13 through 141.16 of this title:
1. Pressure vessels not exceeding fifteen (15) cubic feet in volume and two hundred fifty (250) pounds per square inch gauge pressure;
2. Low pressure steam boilers, hot water heating boilers, hot water supply boilers, hot water supply heaters or pressure vessels which are located in private residences or in apartment houses of less than sixfamily units; and
3. Pressure vessels operated entirely full of water or other liquid which is not materially more hazardous than water, provided the temperature of the vessel contents does not exceed one hundred fifty degrees Fahrenheit (150º F) or a pressure of two hundred (200) pounds per square inch gauge.
C. 1. Either a special inspector or an inspector licensed by the Department of Labor shall inspect exhibitor boilers on an annual basis when exhibitor boilers are being operated at public events. Exhibitor boilers maintained by owner/operators for private use and not for operation for the public shall be exempt from inspection by this state. Annual inspections by this state or a special inspector shall consist of the following:
a. an internal and external visual,
b. threaded openings in the boiler may be inspected, when deemed appropriate, by the inspector after conducting an internal and external visual,
c. a hydrostatic pressure test at one and twenty-five one-hundredths (1.25) times the maximum allowable working pressure,
d. the maximum allowable working pressure shall not exceed one hundred eighty-five (185) pounds per square inch (psi),
e. the ash pan and grates on a dry bottom vessel shall be removed to allow a visual inspection of the crown sheet,
f. a visual inspection of the crown sheet on wet bottom boilers,
g. all boilers shall have a fusible plug that is constructed to the American Society of Mechanical Engineers (ASME) code and indicated by an ASME marking on the filler material. It shall protrude one (1) inch into the water on a fireside fusible plug and no more than one (1) inch on a waterside fusible plug,
h. the pressure relief valve shall be National Board capacity certified,
i. a gage glass shall be present with a guard to protect the glass, drain valve or petcock, be piped to a safe location, and be operational,
j. try cocks shall be located in correlation to the minimum required water level,
k. a pressure gage that has been tested and proven accurate at the time of the annual pressure test,
l. all piping shall be schedule 80, black pipe (SA-53 B or SA-105 B) from the boiler to the first valve,
m. the boiler shall be equipped with two means of supplying feed water while under pressure, and
n. all welding to the boiler shall be done by a certified repair organization as accredited and described in Part RA of the National Boiler Inspection Code (NBIC).
2. Exhibitor boilers shall have a nondestructive exam performed once every five (5) years for determining repairs and thin areas that need to be repaired. An inspector from the Department of Labor may perform a random nondestructive exam annually. Results from the exam may be used by the inspector to waive any time remaining on the five-year period. A nondestructive exam shall meet the following requirements:
a. on a dry bottom boiler, no less than 150 readings shall be taken,
b. on a wet bottom boiler, no less than 180 readings shall be taken,
c. this exam shall include the areas surrounding the crown sheet stays and any areas subject to corrosion,
d. a loss of metal that is greater than forty percent (40%) of the original boiler plate thickness in an area greater than three (3) inches in diameter shall be considered to be a thin area and shall need to be repaired prior to any operation,
e. exams shall be by a certified professional pursuant to applicable provisions of law of this state,
f. no exam shall be by a certified professional that has a vested interest in the boiler that is being examined,
g. the exam results shall be made available to the organization where the boiler is being exhibited, if requested, and
h. the exam results shall be made available at the time of the annual inspection to the inspector, if requested.
For purposes of this subsection, "exhibitor boiler" shall mean a boiler which is operated in this state for nonprofit purposes including, but not limited to, exhibitions, fairs, parades, farm machinery shows, or any other event of a historical or educational nature. An exhibitor boiler includes steam locomotives, traction and portable steam engines, and stationary boilers of the firetube, watertube, model or miniature, and may be riveted, riveted and welded, or all welded construction, if used within the state for nonprofit purposes.
D. Pressure vessels, associated piping, and connections located on oil and gas lease sites shall fall under the exclusive jurisdiction of the Corporation Commission. The Corporation Commission shall be responsible for the inspection of oil and gas lease pressure vessels to ensure the vessels, associated piping, and connections are properly operated and maintained in a manner deemed appropriate by the Corporation Commission.
Added by Laws 1982, c. 252, § 2. Amended by Laws 2002, c. 250, § 1, eff. July 1, 2002.
§40141.3. Rules and regulations Formulation Promulgation.
A. Formulation. The Commissioner of Labor shall formulate and adopt definitions, rules and regulations for the safe construction, installation, inspection, operation, maintenance and repair of boilers and pressure vessels in this state.
1. The definitions, rules and regulations so formulated for new construction shall be based upon and follow generally accepted national engineering standards, formula and practices related to boiler and pressure vessel construction and safety. The Commissioner of Labor may adopt an existing American National Standard known as the Boiler and Pressure Code of the American Society of Mechanical Engineers, with the addenda and code cases, and may also adopt subsequent revisions in the form of addenda and code cases of that standard provided such revisions are acceptable to the Commissioner. When so adopted, the same shall be deemed incorporated into, and to constitute a part of the whole of the definitions, rules and regulations of the Commissioner of Labor;
2. The Commissioner of Labor shall formulate rules and regulations to ensure that boiler and pressure vessel manufacturers, jobbers, dealers or individuals selling, renting or leasing or offering for sale, rent or lease or operation, any boiler or pressure vessel which is within the scope of this act meets the requirements of this act, rules and regulations hereinafter adopted. Any manufacturer, jobber, dealer or individual found to be in violation of this section shall be subject to any current penalty as herein provided;
3. The Commissioner of Labor shall formulate rules and regulations which may permit the use of boilers and pressure vessels which were in operation in this state prior to the date upon which the first rules and regulations under this act pertaining to existing installations become effective, or during the twelvemonth period immediately thereafter; and
4. The rules for inspection, maintenance and repair of installed boilers and pressure vessels shall be based upon and follow generally accepted national standards as promulgated by the National Board of Boiler and Pressure Vessel Inspectors or by the American Petroleum Institute Pressure Vessel Inspection Code as a minimum as relates to boiler and pressure vessels.
B. Promulgation. The rules and regulations and any subsequent amendments thereto formulated or adopted by the Commissioner of Labor shall be adopted in accordance with the Oklahoma Administrative Procedures Act, except that the rules applying to the construction of new boilers and pressure vessels shall not become mandatory until six (6) months after their promulgation by the Commissioner.
§40141.4. Application of rules and regulations.
A. Twelve (12) months from the date upon which the rules and regulations under this act become effective, all new boilers and pressure vessels for use in this state shall conform to such rules and regulations.
B. If a boiler or pressure vessel is of special design or construction, and cannot comply with the construction requirements of the rules and regulations of this act, a special installation and operating permit may be granted by the Commissioner of Labor at his discretion, provided the user presents evidence acceptable to the Commissioner.
C. Welded steam lines Downstream steam lines fabricated or repaired by welding, operated at in excess of fifteen (15) pounds per square inch gauge shall be fabricated, inspected and tested in accordance with applicable rules and regulations.
Added by Laws 1982, c. 252, § 4.
§40141.5. Maximum allowable working pressure Determination Exemptions Special Permit.
A. The maximum allowable working pressure of a boiler stamped with the AmericanSociety of Mechanical Engineers Code symbol or a pressure vessel stamped with the American Society of Mechanical Engineers or American Petroleum Institute American Society of Mechanical Engineers Code symbol shall be determined by the applicable sections of the code under which it was constructed and stamped.
B. The maximum allowable working pressure of a boiler or pressure vessel which is not stamped and does not carry the ASME or the APIASME Code symbol shall be computed in accordance with standard engineering practice using a factor of safety established by rules adopted by the Commissioner of Labor.
C. This act shall not be construed as in any way preventing the use, sale or reinstallation of a boiler or pressure vessel referred to in subsection B of this section, provided the Commissioner of Labor gives a specific ruling that such boiler or pressure vessel conforms to its rules and regulations, and provided further, upon inspection it has been found to be in safe condition.
D. If a boiler or pressure vessel is of historical significance and cannot comply with the construction requirements of the rules and regulations of this act, a special installation and operating permit may be granted by the Commissioner.
Added by Laws 1982, c. 252, § 5.
§40-141.6. License required - Exemptions - Fee - Evidence of qualifications - Hearings - Violations.
A. All firms or corporations engaged in the service, repair and/or installation of boilers or pressure vessels located in this state shall be licensed by the Commissioner to perform such work. Provided, no license shall be required for any firms or corporations engaged in the service, repair and/or installation of hot water supply heaters as provided in paragraph 12 of subsection A of Section 2 of this act. The Commissioner of Labor shall abide by any existing code of installation presently adopted or as may be hereinafter adopted by this state or its agencies or by any county, municipality or school district as pertains to hot water supply heaters. The annual license fee shall be payable in advance on or before January 31 of each calendar year. Each firm or corporation must furnish evidence suitable to the Commissioner that they are qualified to perform such work.
B. All hearings for the issuance or revocations of license under this section shall comply with the Oklahoma Administrative Procedures Act.
C. Any person who shall violate any of the provisions of this act or who violates any rule or order of the Commissioner pursuant to this act shall be guilty of a misdemeanor, and in addition thereto, may be enjoined from continuing such action. Each day upon which such violation occurs shall constitute a separate violation.
Added by Laws 1982, c. 252, § 6.
§40141.7. Bureau of boiler inspection Establishment Personnel Powers and duties.
There is hereby established a bureau of boiler inspection in the Department of Labor under the direction of the chief boiler inspector, who shall have at the time of appointment a valid commission issued in accordance with the constitution and bylaws of the National Board of Boiler and Pressure Vessel Inspectors and shall be responsible to the Commissioner of Labor or his duly authorized representative for the supervision, inspection and testing of boilers and pressure vessels throughout the state.
B. The bureau of boiler inspection shall be furnished with sufficient personnel, deputy inspectors and clerical aides to perform the assigned duties with the limits prescribed by the Commissioner of Labor.
C. Powers. The chief boiler inspector and deputy inspectors, under the supervision of the Commissioner of Labor, shall:
1. Take action necessary for the enforcement of this act and these rules and regulations;
2. Keep a complete record of the name and address of the owner or user, location, type, dimensions, maximum allowable working pressure, age, dates of installation and lastrecorded inspection of all boilers and pressure vessels to which this act applies;
3. Make available upon request copies of the rules and regulations promulgated by the Department;
4. Issue, suspend or revoke for cause, certificates of operation as provided for in Section 14 of this act; and
5. Cause the prosecution of violators of the provisions of this act, rules and regulations.
Added by Laws 1982, c. 252, § 7.
§40141.8. Deputy boiler inspectors.
A. The chief boiler inspector shall employ deputy inspectors, subject to approval of the Commissioner of Labor, who shall be responsible to the chief boiler inspector and who shall have at the time of appointment a valid commission issued in accordance with the constitution and bylaws of the National Board of Boiler and Pressure Vessel Inspectors.
B. The deputy inspectors may at the Commissioner's discretion be appointed in a trainee status provided said trainees successfully complete the examination as defined in Section 10 of this act and receive a valid National Board Commission within eighteen (18) months after appointment.
Added by Laws 1982, c. 252, § 8.
§40141.9. Certificates of competency designating special inspectors and owneruser inspectors of boiler and pressure vessels.
A. 1. Certificates of competency designating special inspectors of boilers andpressure vessels shall be issued by the Commissioner upon request of any authorized inspection agency, which has been licensed or registered by the appropriate authority of this state. All such authorized inspection agencies shall provide boiler and pressure vessel insurance coverage and be actively engaged in writing this type coverage in this state;
2. Before receiving a certificate of competency, each inspector shall receive a passing grade on the examination provided for by Section 10 of this act, or shall hold a commission or certificate of competency as an inspector of boilers or pressure vessels from a state that has a standard of examination equal to that of this state, or a commission as an inspector of boilers and pressure vessels issued by the National Board of Boiler and Pressure Vessel Inspectors;
3. Special inspectors shall not receive any salary or expenses from this state, and a certificate of competency shall be valid only as long as such special inspectors are in fulltime employment of an authorized inspection agency;
4. Special inspectors may inspect all boilers and pressure vessels insured by their respective authorized inspection agency; and
5. The insurance company shall apply on or before January 31 of each year for renewal of certificates of competency for each special inspector employed who inspects boilers and pressure vessels insured in this state. The fee must accompany application.
B. 1. Certificates of competency designating owneruser inspectors of boilers or pressure vessels or both shall be issued by the Commissioner upon request of any company operating boilers or pressure vessels or both in this state. The owneruser shall maintain a regularly established inspection department which is under the supervision of one or more technically competent individuals whose qualifications and whose organization and inspection procedures are in accordance with paragraph 4 of subsection A of Section 3 of this act and acceptable to the Commissioner of Labor. Boilers and pressure vessels shall be inspected regularly and in accordance with applicable provisions of the rules and regulations adopted by the Commissioner pursuant to this act;
2. Before receiving a certificate of competency, each inspector shall attain a passing grade on the examination provided for by Section 10 of this act, or shall hold a certificate of competency as an inspector from a state that has a standard of examination equal to that of this state, or who holds a valid commission issued in accordance with the constitution and bylaws of the National Board of Boiler and Pressure Vessel Inspectors;
3. A certificate of competency as an owneruser inspector shall be issued only if, in addition to meeting the requirements in paragraph 2 of this subsection, the inspector is continuously employed by the company and is responsible for making inspection of boilers and pressure vessels used by such company;
4. Owneruser inspectors shall not receive any salary or expenses from this state and a certificate of competency shall be valid only as long as such owneruser inspector is employed full time by a qualified owneruser inspection agency, in accordance with the applicable provisions of the rules and regulations adopted pursuant to this act;
5. The owneruser inspection agency will apply on or before January 31 of each year for renewal of competency for each owneruser inspector employed in this state. The fee must accompany application; and
6. Such owneruser inspectors may inspect all pressure vessels operated by their respective companies and, when so inspected, the owners and users of such pressure vessels shall be exempt from the payment to the state of the inspection fees provided for in Section 16 of this act.
Added by Laws 1982, c. 252, § 9.
§40141.10. Examination of inspectors.
A. The examination for chief boiler inspector, deputy inspectors, special inspectors or owneruser inspectors, except those owneruser inspectors within the scope of the American Petroleum Institute Pressure Vessel Inspection Code, shall be written and shall be held in accordance with the constitution and bylaws of the National Board of Boiler and Pressure Vessel Inspectors.
B. A separate written examination for owneruser inspectors within the scope of the American Petroleum Institute Pressure Vessel Inspection Code shall be administered by the Department of Labor based upon the content of the American Petroleum Institute Pressure Vessel Inspection Code and the American Society of Mechanical Engineers Boiler and Pressure Vessel Codes pertaining to pressure vessels.
Added by Laws 1982, c. 252, § 10.
§40141.11. Suspension of inspector's certificate of competency.
An inspector's certificate of competency may be suspended by the Commissioner of Labor after due investigation for the incompetence or untrustworthiness of the inspector or for the willful falsification of any matter or statement contained in his application, or a report of any inspections made by him. Written notice of any such suspension shall be transmitted by the Commissioner of Labor to the inspector and his employer not more than ten (10) days following the suspension. A person whose certificate of competency has been suspended shall be entitled to an appeal as provided by the Oklahoma Administrative Procedures Act.
Added by Laws 1982, c. 252, § 11.
§40141.12. Lost, stolen or destroyed certificate of competency.
If a certificate of competency is lost, stolen or destroyed, a new certificate of competency may be issued without reexamination.
Added by Laws 1982, c. 252, § 12.
§40141.13. Inspection of certain boilers and pressure vessels.
A. The Commissioner of Labor or the chief boiler inspector, or any deputy inspector, shall have free access, during reasonable hours, to any premises in the state where a boiler or pressure vessel is being constructed for use in, or is being installed in this state for the purpose of ascertaining whether such boiler or pressure vessel is being constructed and installed in accordance with the provisions of the Boiler and Pressure Vessel Safety Act.
B. Each boiler and pressure vessel covered by the Boiler and Pressure Vessel Safety Act shall be thoroughly inspected as to its construction, installation and condition as follows:
1. Power boilers and high pressure high temperature water boilers shall receive an inspection annually which shall be an internal inspection where construction permits; otherwise it shall be as complete an inspection as possible. Such boilers shall also be externally inspected annually preferably while under pressure;
2. Low pressure steam or vapor heating boilers shall receive an external inspection annually with an internal inspection at least every two (2) years where construction permits;
3. Hot water heating and hot water supply boilers shall receive an external inspection annually with an internal inspection at the discretion of the inspector;
4. Pressure vessels, excluding those within the scope of the American Petroleum Institute Pressure Vessel Inspection Code, subject to internal corrosion and waste heat steam generators shall receive an internal inspection triennially where construction permits. Pressure vessels not subject to internal corrosion shall receive an inspection at intervals set by the Commissioner. Frequency of external inspections of pressure vessels shall be set by the Commissioner;
5. A grace period of two (2) months beyond the periods specified in paragraphs 1, 2, 3 and 4 of this subsection is permitted between inspections; however, the inspection due date shall not be affected; provided, however, for an entity with two or more boilers or pressure vessels, the Commissioner may allow all inspections of the boilers or pressure vessels to be conducted at that location at the same time;
6. The Commissioner of Labor may provide for longer periods between inspections in the rules for specific boilers and pressure vessels; and
7. Under the provisions of the Boiler and Pressure Vessel Safety Act, the Commissioner of Labor is responsible to provide rules for the safety of life, limb and property and therefore has jurisdiction over the interpretation and application of the inspection requirements as provided for in the rules. Inspection during construction and installation shall certify as to the minimum requirement for safety as defined in the American Society of Mechanical Engineers Code or other construction standards acceptable to the Commissioner of Labor. Inspection requirements of operating equipment shall be in accordance with generally accepted practice and compatible with the actual service condition, such as:
a. previous experience, based on records of inspection, performance and maintenance,
b. location, with respect to personnel hazard,
c. quality of inspection and operating personnel,
d. provision for related safe operating controls, and
e. interrelation with other operations outside the scope of the Boiler and Pressure Vessel Safety Act.
Based upon the documentation of such actual service conditions by the owner or user of the operating equipment, the Commissioner of Labor may, at his discretion, permit variations in the inspection requirements.
C. The inspections herein required shall be made by the Commissioner, chief boiler inspector, deputy inspector or a special inspector as provided for in the Boiler and Pressure Vessel Safety Act.
D. Owneruser inspection of boilers and pressure vessels is permitted provided the owneruser inspection service is regularly established and is under the supervision of one or more individuals whose qualifications are satisfactory to the Commissioner of Labor and said owneruser causes the pressure vessels to be inspected in conformance with the National Board Inspection Code or American Petroleum Institute Pressure Vessel Inspection Code as applicable.
E. If, at the discretion of the inspector, a hydrostatic test shall be deemed necessary, it shall be made by the owner or user or his licensed representative and witnessed by an inspector as authorized by the Boiler and Pressure Vessel Safety Act, before a certificate of operation is issued.
F. All boilers, other than cast iron sectional boilers, and pressure vessels to be installed in this state after the twelvemonth period from the date upon which the rules of the Commissioner become effective, shall be inspected during construction as required by the applicable rules by an inspector authorized to inspect boilers and pressure vessels in this state, or if constructed outside of the state, by an inspector holding a valid commission issued by the National Board of Boiler and Pressure Vessel Inspectors.
G. No person, firm or corporation shall in any manner interfere with the performance of the official duties of any inspector authorized by the Boiler and Pressure Vessel Safety Act.
Added by Laws 1982, c. 252, § 13. Amended by Laws 2000, c. 295, § 6, eff. Nov. 1, 2000.
§40141.14. Inspection report Inspection record Certificate of operation Suspension of certificate.
A. 1. Each authorized inspection agency employing special inspectors meeting the requirements of subsection A of Section 9 of this act shall, within thirty (30) days following each inspection made by such inspectors, file an exact copy of the report of the inspection with the chief boiler inspector upon appropriate forms as promulgated by the Commissioner of Labor; and
2. Each company operating pressure vessels covered by owneruser inspections service meeting the requirements of subsection B of Section 9 of this act shall maintain in its files an inspection record which shall list, by number and such abbreviated description as may be necessary for identification, each pressure vessel covered by this act, the date of the last inspection of each pressure vessel and the approximate date for the next inspection. The inspection record shall be available for examination by the chief inspector or his authorized representative during business hours. Each such company shall, in addition, file annually with the chief inspector a statement, signed by the individual having supervision over the inspections made during the period covered thereby, stating the number of pressure vessels covered by this act inspected during the year and certifying that each such inspection was conducted pursuant to the inspection requirements provided for by this act.
Such annual statement shall be accompanied by a fee equal to that shown in subparagraph c of paragraph 2 of subsection A of Section 16 of this act.
B. If the report filed pursuant to subsection A of this section shows that a boiler or pressure vessel is found to comply with the rules and regulations of the Commissioner of Labor and upon direct payment to the Department of Labor by the owner or user of the fee prescribed shall issue the owner or user a certificate of operation. The certificate of operation shall be valid for a period consistent with the inspection frequency as required by Section 13 of this act. In the case of those boilers and pressure vessels covered by paragraphs 1, 2, 3 and 4 of subsection B of Section 13 of this act for which the Commissioner of Labor has established or extended the operating period between required inspections, pursuant to the provisions of paragraph 7 or 8 of subsection B of Section 13 of this act, the certificate of operation shall be valid for a period of not more than two (2) months beyond the period set by the Commissioner. Certificates of operation for boilers shall be posted under glass, or similarly protected, in the room containing the boiler. Pressure vessel certificates of operation shall be posted in like manner, if convenient, or filed where they will be readily accessible for examination by the Commissioner, chief boiler inspector or deputy inspector.
C. The chief boiler inspector or deputy inspectors may at any time suspend a certificate of operation if the boiler or pressure vessel for which it is issued is deemed a menace to the public safety, or when the boiler or pressure vessel is found not to comply with the rules and regulations herein provided. Each suspension of a certificate of operation shall continue in effect until such boiler or pressure vessel shall have been made to conform to the rules and regulations, and until said certificate of operation shall have been reinstated.
Added by Laws 1982, c. 252, § 14.
§40141.15. Certificate of operation required Violations.
After twelve (12) months for power boilers, twentyfour (24) months for low pressure steam heating, hot water heating and hot water supply boilers, and thirtysix (36) months for pressure vessels following the date on which this act becomes effective, it shall be unlawful for any person, firm, partnership or corporation to operate in this state a boiler or pressure vessel covered by this act, including boilers and pressure vessels covered by owneruser inspection service provided for in Section 14, without a valid certificate of operation. The operation of a boiler or pressure vessel without such certificate of operation, or at a pressure exceeding that specified in such certificate of operation or in violation of this act or the rules and regulations promulgated under it, shall constitute a misdemeanor on the part of the owner, user or operator thereof. Each day of such unlawful operation shall be deemed a separate offense.
Added by Laws 1982, c. 252, § 15.
§40-141.16. Fees.
A.
1. a. Annual certificate of operation fee shall be as follows:
(1) with manway state inspector $50.00
(2) without manway state inspector $25.00
(3) any size special - or owner/user inspector $25.00
b. Only one certificate of operation fee per year may be charged; except an additional fee equal to the certificate of operation fee may be charged for witnessing a hydrostatic test required after repairs, provided a fee equal to the total fees identified in division (1) or (2) of subparagraph a of this paragraph, whichever is appropriate, and subparagraph f of paragraph 2 of this subsection may be charged when the pressure-retaining item is not prepared and ready pursuant to rules promulgated by the Commissioner of Labor at the time of the inspection.
2. Other Fees
a. hydrostatic test of steam pipeline per day $150.00
(for each additional half-day or part thereof) $75.00
b. shop review fees $1,250.00
c. licensing fees
(1) repair, service, install (annually) $50.00
(2) installer technician (one-time issuance) $50.00
(3) boiler operator (biennially) $50.00
d. certificate of competency fee $15.00
e. examination fee $50.00
f. boiler or pressure vessel inspection fee for certificate inspections by state inspectors $100.00
g. authorized inspector services for weld repairs or alterations, per eight-hour day or part thereof $300.00
h. a fee as established by rule may be assessed for the issuance of duplicate licenses and certificates, not to exceed $10.00
B. All institutions owned or operated by the State of Oklahoma or its agencies or by any county, municipality or school district, and such institutions or agencies, and all owners or users of boilers or pressure vessels of historical significance as specified in subsection D of Section 141.5 of this title are exempt from the payment of any fees provided for in this section.
C. 1. The Commissioner shall account for and transfer all fees, except for the fees listed in subparagraphs b, g, and h of paragraph 2 of subsection A of this section, so received to the State Treasury to the credit of the General Revenue Fund, together with a detailed report of same.
2. Shop review fees, authorized inspector services fees and duplicate license and certificate fees shall be deposited to the Department of Labor Revolving Fund created pursuant to Section 141.19 of this title.
3. The shop review fees, authorized inspector services fees and duplicate license and certificate fees shall be used for conducting shop reviews, authorized inspector services and for administrative costs.
D. All fees shall be paid directly to the Department of Labor.
Added by Laws 1982, c. 252, § 16. Amended by Laws 1991, c. 215, § 14, eff. July 1, 1991; Laws 1992, c. 305, § 1, emerg. eff. May 27, 1992; Laws 2001, c. 57, § 1, eff. July 1, 2001; Laws 2004, c. 554, § 1, eff. Sept. 1, 2004.
§40141.17. Bond.
The chief boiler inspector and deputy inspectors shall be bonded in the sum of Five Thousand Dollars ($5,000.00) conditioned upon faithful performance of duty and true account of all money and proper disposition of all said money.
Added by Laws 1982, c. 252, § 17.
§40141.18. Accidents and incidents Investigation and inquiry Notice.
A. The Department of Labor has total jurisdiction over the investigation or inquiry into accidents and incidents arising within the definitions of this act.
B. It shall be mandatory for all owners, users or operators to immediately notify the Department of Labor and secure the total accident or incident area by whatever means is practical until such time as the Department of Labor representative or a designee of the Commissioner arrives on the scene, except in case of the protection of life or limb as a result of said accident or incident.
Added by Laws 1982, c. 252, § 18.
§40-141.19. Department of Labor Revolving Fund.
There is hereby created in the State Treasury a revolving fund for the Department of Labor to be designated the "Department of Labor Revolving Fund". The fund shall be a continuing fund, not subject to fiscal year limitations, and shall consist of all monies designated for deposit in such fund. All monies accruing to the credit of the fund are hereby appropriated and may be budgeted and expended as directed by the Legislature. Expenditures from the fund shall be made upon warrants issued by the State Treasurer against claims filed as prescribed by law with the Director of State Finance for approval and payment.
Added by Laws 1996, c. 362, § 2, eff. Sept. 1, 1996.
§40-141.20. Petty cash fund.
A. The Director of State Finance is hereby authorized, upon request by the Commissioner of Labor, to establish a petty cash fund for the Department of Labor in an amount not to exceed Four Hundred Dollars ($400.00), to be used for the purpose of making change for persons obtaining licenses and transacting other business with the Department.
B. The fund shall be established and replenished from any monies available to the Department for operating expenses.
C. The Director of State Finance shall prescribe all forms, systems, and procedures for administering the fund.
Added by Laws 1999, c. 404, § 1, emerg. eff. June 10, 1999.
§40-165.1. Definitions.
As used only in Sections 165.1 through 165.11 of this title:
1. "Employer" means every individual, partnership, firm, association, corporation, the legal representative of a deceased individual, or the receiver, trustee or successor of an individual, firm, partnership, association or corporation, employing any person in this state;
2. "Employee" means any person permitted to work by an employer;
3. "Exempt employee" means those management level employees exempt under the provisions of Section 213 of the Fair Labor Standards Act, as amended, 29 U.S.C. Section 213, from the provisions of Sections 206 and 207 of said act;
4. "Wages" means compensation owed by an employer to an employee for labor or services rendered, including salaries, commissions, holiday and vacation pay, overtime pay, severance or dismissal pay, bonuses and other similar advantages agreed upon between the employer and the employee, which are earned and due, or provided by the employer to his employees in an established policy, whether the amount is determined on a time, task, piece, commission or other basis of calculation;
5. "Commissioner" means State Commissioner of Labor; and
6. "Bona fide disagreement" means an honest and sincere belief or assertion based on a dispute of a determinative fact or application of law under this title which is supported by relevant evidence.
Laws 1955, p. 240, § 1, emerg. eff. June 6, 1955; Laws 1982, c. 304, § 24, operative Oct. 1, 1982; Laws 1990, c. 333, § 18, emerg. eff. May 31, 1990; Laws 2005, c. 359, § 1, eff. Nov. 1, 2005.
§40-165.2. Semimonthly payment of wages on regular paydays - Payment in money - Itemized statement of deductions - Prohibited payments.
Every employer in this state shall pay all wages due the employees, other than exempt employees and employees of nonprivate foundations qualified pursuant to 26 U.S.C. 509(a)(1) and 26 U.S.C. 170(b)(1)(A)(vi), at least twice each calendar month on regular paydays designated in advance by the employer. State, county and municipal employees, exempt employees, and employees of nonprivate foundations qualified pursuant to 26 U.S.C. 509(a)(1) and 26 U.S.C. 170(b)(1)(A)(vi) shall be paid a minimum of once each calendar month. The amount due such employees shall be paid in lawful money of the United States, and the employee shall not be deemed to have waived any right or rights mentioned in this section because of any contract to the contrary. With each payment of wages earned by such employee, the employer shall issue to such employee a brief itemized statement of any and all deductions therefrom. An interval of not more than eleven (11) days may elapse between the end of the pay period worked and the regular payday designated by the employer. The employer shall be allowed three (3) days after such payday in which to comply with this section.
No such employer shall issue, in payment of or as evidence of indebtedness due an employee any check, cashier's check, draft, time check, store order, scrip, or other acknowledgment of indebtedness unless the same is payable or redeemable upon demand without discount and for face value in lawful money of the United States.
Added by Laws 1955, p. 241, § 2, emerg. eff. June 6, 1955. Amended by Laws 1967, c. 346, § 1, emerg. eff. May 18, 1967; Laws 1982, c. 304, § 25, operative Oct. 1, 1982; Laws 1990, c. 333, § 19, emerg. eff. May 31, 1990; Laws 2002, c. 160, § 2, eff. Nov. 1, 2002.
§40-165.2a. Administrative fine.
The Commissioner of Labor or designee is hereby authorized to assess an administrative fine of Five Hundred Dollars ($500.00) against an employer operating in this state who is found to have violated Sections 165.1 through 165.11 of Title 40 of the Oklahoma Statutes if such violations occur on two or more occasions within any six-month period. All administrative fines collected pursuant to this section shall be deposited to the Department of Labor Revolving Fund.
Added by Laws 2002, c. 226, § 1, emerg. eff. May 9, 2002. Amended by Laws 2003, c. 293, § 1, emerg. eff. May 27, 2003.
§40-165.3. Termination of employee - Payment - Failure to pay.
A. Whenever an employee's employment terminates, the employer shall pay the employee's wages in full, less offsets and less any amount over which a bona fide disagreement exists, as defined by Section 165.1 of this title, at the next regular designated payday established for the pay period in which the work was performed either through the regular pay channels or by certified mail postmarked within the deadlines herein specified if requested by the employee, unless provided otherwise by a collective bargaining agreement that covers the employee.
B. If an employer fails to pay an employee wages as required under subsection A of this section, such employer shall be additionally liable to the employee for liquidated damages in the amount of two percent (2%) of the unpaid wages for each day upon which such failure shall continue after the day the wages were earned and due if the employer willfully withheld wages over which there was no bona fide disagreement; or in an amount equal to the unpaid wages, whichever is smaller; provided, however, that for the purpose of such liquidated damages such failure shall not be deemed to continue after the date of the filing of a petition in bankruptcy with respect to the employer if he thereafter shall have been adjudicated bankrupt upon such petition.
Laws 1955, p. 241, § 3, emerg. eff. June 6, 1955; Laws 1968, c. 270, § 1, emerg. eff. April 30, 1968; Laws 1974, c. 12, § 1, emerg. eff. April 3, 1974; Laws 1982, c. 304, § 26, operative Oct. 1, 1982; Laws 2005, c. 359, § 2, eff. Nov. 1, 2005.
§40-165.3a. Payment of wages to surviving spouse and children.
Other than an employee provided with an option of beneficiary designation with respect to his wages and benefits by his employer, all wages earned by an employee, not exceeding Three Thousand Dollars ($3,000.00), shall, upon the employee's death, become due and payable to the employee's surviving spouse, or if there is no surviving spouse, the dependent children, or their guardians or the conservators of their estates, in equal shares, without the necessity of a probate court action.
Added by Laws 1993, c. 263, § 1, emerg. eff. May 27, 1993. Amended by Laws 1994, c. 114, § 1, emerg. eff. April 24, 1994.
§40-165.4. Bona fide disagreements.
A. In order to successfully allege a bona fide disagreement over the amount of wages, the employer shall:
1. Pay such amount as the employer concedes to be due, without condition, within the time required by Sections 165.2 and 165.3 of this title; and
2. Provide to the employee, within fifteen (15) days of either receipt of a wage claim form from the Department of Labor or certified mail receipt of written demand from an employee, written explanation of the relevant facts and/or evidence which supports the belief of the employer that the wages in dispute are not owed.
B. Acceptance by the employee of any payment made under this section shall not constitute a release as to the balance of the wage claim.
C. Payment in accordance with this section shall constitute payment for the purposes of complying with Sections 165.2 and 165.3 of this title only in those instances where there exists a bona fide disagreement over the amount of wages as defined by Section 165.1 of this title.
D. The Commissioner may set the contested amounts for administrative hearing pursuant to Section 165.7 of this title.
Laws 1955, p. 241, § 4, emerg. eff. June 6, 1955; Laws 1993, c. 263, § 2, emerg. eff. May 27, 1993; Laws 2005, c. 359, § 3, eff. Nov. 1, 2005.
§40165.5. Private agreements.
Except as hereinafter provided under Section 10, no provision of this act shall in any way be contravened or set aside by private agreement.
Laws 1955, p. 241, § 5.
§40165.6. Contractors as employers.
Whenever any person herein called the contractor shall contract with another for the performance of any work which the contractor has undertaken to perform, the contractor shall be deemed an employer and shall become civilly liable to employees engaged in performance of work under such contract for the payment of wages (but not for the payment of liquidated damages) as required by Sections 2 and 4 of this act whenever and to the extent that the employer of such employees fails to pay such wages; provided, however, that the employer of such employees shall be liable to the contractor for wages paid to such employees by the contractor under this section.
Laws 1955, p. 242, § 6.
§40165.7. Enforcement and administration - Administrative proceedings - Orders - Appeals - Actions.
A. The Commissioner of Labor shall enforce and administer the provisions of this act and in any case where a civil action may be brought for the collection of a wage claim, the Commissioner of Labor may provide for an administrative proceeding to determine the validity and enforce collection of the claim. The administrative proceeding shall be conducted according to the Administrative Procedures Act.
B. In any case when the Commissioner has received a wage complaint, the Commissioner may seek collection of such claim through administrative proceedings in a manner provided in this section. The Commissioner may join in a single administrative proceeding any number of wage claims against the same employer. The Commissioner shall serve upon the employer an order of determination directing the employer to pay to the Commissioner the amount of the wage claim and any penalty amounts. Service shall be made by regular mail to the employer's last-known address. The order of determination shall include:
1. A reference to the particular sections of the statutes or rules involved;
2. A short and concise statement of the basis for the amounts determined to be owed to each wage claimant;
3. A statement that the employer within twenty (20) days after receipt of the order of determination must pay in full the wage claim and any penalties assessed on appeal to district court; and
4. A statement that unless a written request for reconsideration is received by the Commissioner or the order is appealed to district court within the time specified, the order of determination shall become final.
C. Upon failure of the employer to pay the amount specified in the order of determination or to request reconsideration or appeal to district court, the order of determination shall become final.
D. A hearing shall be held in accordance with the applicable provisions of the Administrative Procedures Act by the Commissioner or the Commissioner's designee. The Commissioner shall adopt rules for such hearing. In any hearing before the Commissioner's designee, the designee is authorized to issue the final order in the case.
E. Final administrative orders issued in a wage claim proceeding are subject to appeal pursuant to the Administrative Procedures Act.
F. When an order under this section becomes final by operation of law or an appeal, and the amount due is not paid within twenty (20) days after the order becomes final, the order may be recorded with the county clerk in any county of this state. The clerk shall thereupon record the name of the person incurring the penalty and the amount of the penalty in the county clerk's lien record. The order may be collected as any other money judgment.
G. The remedies provided by Sections 165.1 through 165.11 of this title shall be additional to and not in substitution for and in no manner impair other remedies. Additionally, one or more individuals who are aggrieved by violation of any provision of Sections 165.1 through 165.11 of this title shall be entitled to bring an action in his or their own name to enforce the provisions of such sections.
Laws 1955, p. 242, § 7, emerg. eff. June 6, 1955; Laws 1993, c. 263, § 3, emerg. eff. May 27, 1993.
§40165.8. Penalties.
It shall be a misdemeanor for any employer to violate any of the provisions of Sections 165.1 through 165.11 of this title.
Amended by Laws 1982, c. 304, § 27, operative Oct. 1, 1982.
§40165.9. Actions to recover unpaid wages and damages Parties Costs and attorney's fees.
A. Action by an employee to recover unpaid wages and liquidated damages may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and on behalf of all employees similarly situated for such wages. Any employee, or his representative, shall have the power to settle and adjust his claim for unpaid wages.
B. The court in any action brought under this section may, in addition to any judgment awarded to the plaintiff or plaintiffs, defendant or defendants, allow costs of the action, including costs or fees of any nature, and reasonable attorney's fees.
Amended by Laws 1982, c. 304, § 28, operative Oct. 1, 1982; Laws 1988, c. 250, § 2, emerg. eff. June 27, 1988.
§40165.10. Partial invalidity.
If any provisions of this act, or the application thereof to any person or circumstance, is held invalid, the remainder of the act, and the application of such provision to other persons or circumstances shall not be affected thereby.
Laws 1955, p. 242, § 10.
§40165.11. Failure to pay benefits or furnish wage supplements pursuant to agreements.
A. In addition to any other penalty or punishment otherwise prescribed by law, any employer who is a voluntary party to or subject to a bona fide written agreement to pay or provide benefits or wage supplements to employees or to a third party or fund for the benefit of employees and who willfully fails, neglects or refuses to pay the amount or amounts necessary to provide such benefits or furnish such supplements within thirty (30) days after such payments are required to be made by law or by agreement, shall be guilty of a misdemeanor, and each such failure to make payment as required herein shall constitute a separate offense. Where such employer is a corporation, the president, secretary, treasurer or officers exercising corresponding functions shall each be guilty of a misdemeanor.
B. As used in this section, the term "benefits or wage supplements" includes, but is not limited to, reimbursement for expenses as agreed prior to contracting said expenses; health, welfare and retirement benefits; and vacation, separation or holiday pay.
Laws 1975, c. 107, §§ 1, 2, eff. Oct. 1, 1975.
§40166. Conspiracy.
No agreement, combination or contract by or between two or more persons to do or procure to be done, or not to do or procure not to be done, any act in contemplation or furtherance of any trade dispute between employers and employees, shall be deemed criminal, nor shall those engaged therein be indictable or otherwise punishable for the crime of conspiracy, if such act committed by one person would not be punishable as a crime, nor shall such agreement, combination or contract be considered as in restraint of trade or commerce, nor shall any restraining order or injunction be issued with relation thereto. Nothing in this article, shall exempt from punishment otherwise than is herein excepted, any person guilty of conspiracy for which punishment is provided by any other law of the state, but such other law shall, as to the agreement, combination and contracts heretofore referred to, be construed as if this article, was therein contained: Provided, that nothing in this article, shall be construed to authorize force or violence.
R.L.1910, § 3764.
§40167. False Statements as to conditions of employment.
It shall be unlawful for any employer of labor doing business in the state, to induce, influence, persuade or engage workmen to change from one place to another in the state, or to bring workmen of any class or calling into this state to work in any of the departments of labor, through or by means of false or deceptive representations, false advertising or false pretenses concerning the kind and character of the work to be done, or amount and character of the compensation to be paid for such work or the sanitary or other conditions of employment or as to the existence or nonexistence of a strike or other trouble pending between employer and employees, at the time of or prior to such engagement. Failure to state in an advertisement, proposal or contract for the employment of workmen that there is a strike, lockout or other labor trouble at the place of the proposed employment, when in fact such strike, lockout or other labor troubles then actually exist at such place, shall be deemed a false advertisement and misrepresentation for the purposes of this section.
R.L.1910, § 3765.
§40168. Penalty.
Any employer of labor of any kind doing business in this state, as well as its agent, attorney or servant, found guilty of violating the preceding section, or any part thereof, shall be fined not less than Five Hundred Dollars ($500.00) and not exceeding Two Thousand Dollars ($2,000.00), or confined in the county jail not less than one (1) month and not exceeding one (1) year or both such fine and imprisonment.
R.L.1910, § 3766.
§40-169. Hiring armed guards without permit a felony.
Any person who shall hire, aid, abet or assist in hiring through private detective agencies or otherwise, persons to guard with arms or deadly weapons of any kind, other persons or property, or any person who shall come into this state armed with deadly weapons of any kind for any such purpose, without a permit, in writing, from the Governor, shall be guilty of a felony, and on conviction thereof shall be imprisoned in the State Penitentiary not less than one (1) year nor more than five (5) years. Provided, that nothing herein contained shall be construed to interfere with the right of any person, corporations, society, association or organization in guarding and protecting their property as provided by law; but this section shall be construed only to apply in cases where workmen are brought into the state or induced to go from one place to another in the state by any false pretenses, false advertising, or deceptive representation, or brought into the state under arms or removed from one place to another in the state under arms.
R.L. 1910, § 3767. Amended by Laws 1997, c. 133, § 454, eff. July 1, 1999; Laws 1999, 1st Ex.Sess., c. 5, § 331, eff. July 1, 1999.
NOTE: Laws 1998, 1st Ex.Sess., c. 2, § 23 amended the effective date of Laws 1997, c. 133, § 454 from July 1, 1998, to July 1, 1999.
§40170. Workman may recover for misrepresentation.
Any workman who shall be influenced, induced or persuaded to engage with any persons mentioned in Section 3765, through or by means of any of the things therein prohibited, shall have the right of action for recovery of all damages that he has sustained in consequence of the false or deceptive representation, false advertisement and false pretenses used to induce him to change his place of employment, against any companies, corporations, or other employers of labor, directly or indirectly causing such damages, and, in addition to all actual damages such workman may have sustained, he shall be entitled to recover such reasonable attorney's fees as the jury shall fix, to be taxed as costs in any judgment recovered.
R.L.1910, § 3768.
§40171. Public service corporation to give letter to employee leaving service.
Whenever any employee of any public service corporation, or of a contractor, who works for such corporation, doing business in this state, shall be discharged or voluntarily quits the service of such employer, it shall be the duty of the superintendent or manager, or contractor, upon request of such employee to issue to such employee a letter, setting forth the nature of the service rendered by such employee to such corporation or contractor, and the duration thereof, and truly stating the cause for which such employee was discharged from or quit such service, and, if any such superintendent, manager or contractor shall fail or refuse to issue such letter, to such employee, when so requested, or shall willfully or negligently refuse or fail to state the facts correctly, such superintendent, manager or contractor shall be deemed guilty of a misdemeanor and upon conviction thereof, shall be punished by a fine of not less than One Hundred Dollars ($100.00), and not more than Five Hundred Dollars ($500.00), and by imprisonment in the county jail for a period of not less than one (1) month and not exceeding one (1) year: Provided, that such letter shall be written, in its entirety, upon a plain sheet of white paper to be selected by such employee. No printed blank shall be used, and if such letter be written upon a typewriter, it shall be signed with pen and black ink and immediately beneath such signature shall be affixed the official stamp, or seal, of said superintendent, manager or other officer of such corporation or contractor, in an upright position. There shall be no figures, words or letters used, upon such piece of paper, except such as are plainly essential, either in the date line, address, the body of the letter or the signature and seal or stamp thereafter, and no such letter shall have any picture, imprint, character, design, device, impression or mark, either in the body thereof or upon the face or back thereof and any person of whom such letter is required who fails to comply with the foregoing requirements shall be liable to the penalties above prescribed.
R.L.1910, § 3769.
§40172. Blacklisting.
No firm, corporation or individual shall blacklist or require a letter of relinquishment, or publish, or cause to be published, or blacklisted, any employee, mechanic or laborer, discharged from or voluntarily leaving the service of such company, corporation or individual, with intent and for the purpose of preventing such employee, mechanic or laborer, from engaging in or securing similar or other employment from any other corporation, company or individual.
R.L.1910, § 3770.
§40173. Penalty.
Any person, firm or corporation violating the preceding section shall be fined in any sum not less than One Hundred Dollars ($100.00), nor more than Five Hundred Dollars ($500.00), and any person so blacklisted shall have a right of action to recover damages.
R.L.1910, § 3771.
§40-173.1. Employers' use of social security numbers - Health benefit plan membership identification cards.
A. 1. Any employing entity located in this state shall not do any of the following:
a. publicly post or publicly display in any manner the social security number of an employee. For purposes of this paragraph, "publicly post" or "publicly display" means to intentionally communicate or otherwise make available to the general public,
b. print the social security number of an employee on any card required for the employee to access information, products or services provided by the employing entity,
c. require an employee to transmit their social security number over the Internet, unless the connection is secure or the social security number is encrypted,
d. require an employee to use their social security number to access an Internet web site, unless a password or unique personal identification number or other authentication device is also required to access the Internet web site, or
e. print the social security number of an employee on any materials that are mailed to the employee, unless state or federal law requires the social security number to be on the document to be mailed. Notwithstanding this paragraph, social security numbers may be included in applications and forms sent by mail, including documents sent as part of an application or enrollment process, or to establish, amend or terminate an account, contract or policy, or to confirm the accuracy of the social security number.
2. The provisions of this subsection shall not apply to the state or any political subdivision of the state.
B. The provisions of this section shall not apply to a health benefit plan membership identification card issued or renewed prior to January 1, 2005. After January 1, 2005, the provisions of this section shall be applicable to all health benefit plan membership cards upon issuance or renewal.
C. This section shall not prevent the collection, use, or release of a social security number as otherwise required by state or federal law or the use of a social security number for internal verification or administrative purposes. An employee may also provide an employing entity with written permission to use their social security number for any of the uses otherwise prohibited by this section.
Added by Laws 2004, c. 296, § 1, eff. Nov. 1, 2004
§40174. Scaffolding, etc., to be safeguarded.
All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances erected or constructed by any person, firm or corporation in the state, for use in the erection, repairing, alteration, removal, or painting of any house, building, bridge, viaduct, steel tank, standpipe, or other structure, shall be erected and constructed in a safe, suitable, and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon. Scaffolding or staging swung or suspended from an overhead support more than twenty (20) feet from the ground or floor, shall have, where practicable, a safety rail properly secured and braced, rising at least thirtyfour (34) inches above the floor or main portion of such scaffolding or staging and extending along the entire length of the outside and ends thereto and such scaffolding or staging shall be so fastened as to prevent the same from swaying from the building or structure.
R.L.1910, § 3772.
§40175. Temporary floorings in steel frame buildings.
If in the erection of an iron or steel framed building, the spaces between the girders or floor beams of any floor are not filled or covered by the permanent construction of said floors before another story is added to the building, a close plank flooring shall be placed and maintained over such spaces, during the construction of each story, from the time when the beams or girders are placed in position; but openings protected by a strong hand railing not less than four (4) feet high may be left through said floors for the passage of workmen and material.
R.L.1910, § 3773.
§40176. Penalty for neglect to place temporary floors.
Any person engaged in and having supervision and charge of the building, erection, or construction of any block, building or structure who shall neglect or refuse to place or have placed upon the joists of each and every story of such block, building or structure as soon as the joists are in position, counter floors of such quality and strength as to render perfectly safe the going to and fro thereon of all mechanics, laborers, and other persons engaged upon the work of construction or in supervising the same or in the building or placing of materials therefor, shall be deemed guilty of a misdemeanor, and upon conviction thereof in any court of competent jurisdiction shall be fined in any sum not less than Twentyfive Dollars ($25.00) nor more than Two Hundred Dollars ($200.00), and each and every day that such person, contractor, agent, factor or architect shall neglect or refuse to have such floors so placed as aforesaid, after written notice by the building inspector or from any person whose life or personal safety may be endangered by such neglect or refusal shall be held and considered a separate offense, severally liable to the penalties aforesaid.
R.L.1910, § 3774.
§40177. Contractor or person in charge to comply with preceding sections Penalty for violations Prohibition of use of scaffolds, etc.
Any contractor or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct, steel tank, standpipe or other structure, within the provisions of the three preceding sections, shall comply with the terms thereof, and any such contractor or other person violating any of the provisions of the three preceding sections shall, upon conviction thereof, be fined not less than Fifty Dollars ($50.00) nor more than Two Hundred Dollars ($200.00), or imprisoned for not less than thirty (30) days nor more than one (1) year, or both such fine and imprisonment, in the discretion of the Court. In addition to the penalties herein provided, in the event of refusal or neglect of any person, firm or corporation, or his, or its agent, to comply with the provisions of the three preceding sections, the use of any such scaffold, hoist, crane, stays, ladder, support, or other mechanical contrivance, or the erection, repairing, alteration, removal or painting of any building, bridge, viaduct, steel tank, or other structure, may be prohibited by the Labor Commissioner, or inspector deputized by him, and a notice to that effect shall be posted upon the premises. Such notice shall not be removed until such scaffold, hoist, crane, stays, ladder, support or other mechanical contrivance or temporary floorings are properly and safely constructed.
R.L.1910, § 3775; Laws 1919, c. 149, p. 217, § 1.
§40178. Damages for injury.
An employer shall be responsible in damages for personal injury caused to an employee, who, was himself in the exercise of due care and diligence at the time he was injured, by reason of any defect in the condition of the machinery or appliances connected with or used in the business of the employer which arose, or had not been discovered or remedied owing to the negligence of the employer, or of any person entrusted by him with the duty of inspection, repair, or of seeing that the machinery or appliances were in proper condition.
R.L.1910, § 3776.
§40179. Railroad repair tracks to be sheltered.
It shall be unlawful for any railroad, corporation, or other person, who owns, controls or operates any lines of railroad in the state, to build, construct or repair railroad equipment without first erecting and maintaining at every division point a building or shed over the repair tracks; same to be provided with a floor where such construction or repair is permanently done, so as to provide that all men employed in the construction and repair of cars, trucks, and other railroad equipment, shall be under shelter during snows, sleet, rain, and other inclement weather.
R.L.1910, § 3777.
§40180. Penalty.
Every person or corporation, or manager, superintendent, foreman or agent of any person or corporation, who shall fail or refuse to comply with the provisions of the preceding section, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than Twentyfive Dollars ($25.00) nor more than One Hundred Dollars ($100.00); and each day that said person or corporation, or its manager, superintendent, foreman or agent shall refuse or fail to comply with the provisions of said section shall constitute a separate and distinct violation thereof.
R.L.1910, § 3778.
§40181. Repairing of steam boilers unlawful, when.
It shall be unlawful for any railroad, company or any other person, firm, or corporation, using steam boilers, to command, order or permit by themselves or their agents, any of their employees to enter any steam boiler, firebox or smoke chamber thereto, for the purpose of repairing or cleaning the same or for any other purpose when the same is under steam pressure.
R.L.1910, § 3779.
§40-182. Violation of Section 181 a felony.
Any officer, superintendent, foreman, boss, or other person in authority, who, on behalf of any railroad, corporation, or any other person, firm or corporation, using steam boilers, violating any of the provisions of Section 181 of this title, shall be deemed guilty of a felony, and shall upon conviction, be punished by imprisonment for a period of not less than one (1) year nor more than two (2) years.
R.L. 1910, § 3780. Amended by Laws 1997, c. 133, § 455, eff. July 1, 1999; Laws 1999, 1st Ex.Sess., c. 5, § 332, eff. July 1, 1999.
NOTE: Laws 1998, 1st Ex.Sess., c. 2, § 23 amended the effective date of Laws 1997, c. 133, § 455 from July 1, 1998, to July 1, 1999.
§40183. Employer guilty of manslaughter, when Penalty.
Should any employee enter such boiler, firebox, or smoke chamber, while the same is under pressure of steam, at the command or order of his employer, or the agent of such employer, and while inside of such boiler, firebox or smoke chamber, meet with an accident resulting in his death, the person or persons commanding or ordering him to enter such boiler, firebox, or smoke chamber, shall be guilty of manslaughter in the second degree.
R.L.1910, § 3781.
§40184. Damages.
The fact that the employee, entering such steam boiler, firebox, or smoke chamber, had knowledge of the unsafe condition of such steam boiler and danger in so doing, and meeting with an accident, shall not deprive him of a right of action against such employer for damages, and should said accident result in the death of such employee, then the wife, or next of kin, shall have a right of action against such employer for any damages she, they, or the estate of such deceased employee, may sustain by reason of the death of such employee, which action may be commenced in any court of competent jurisdiction.
R.L.1910, § 3782.
§40185. Leave of absence to railroad employees.
From and after the effective date of this act, all railroad companies operating in the State of Oklahoma are hereby required to grant leave of absence to their employees who desire to run for or seek public office, or who are required to serve in any government position, military or civil, or who have been elected or appointed to public office, or who are required to serve jury duty in the courts of this state. During such leave of absence such employee shall retain and accumulate seniority, and at the termination of such service shall be reinstated with full seniority, and without an interrupted service record, or without any rights or privileges denied him. Provided, however, that at the end of the period of his leave of absence granted hereunder, said employee shall report for duty within fifteen (15) days thereafter.
Laws 1941, p. 131, § 1.
§40186. Employee defined.
The term "employee" as used herein shall mean any person who has established his or her seniority with any railroad company for one (1) year or more without interrupted service.
Laws 1941, p. 131, § 2.
§40187. Revocation of charter for violation.
Any railroad company failing to carry out and adhere to the provisions of this act shall have its charter, authorizing it to do business in this state, revoked by the Secretary of State.
Laws 1941, p. 131, § 3.
§40188. Equipment.
On and after April 15, 1958, it shall be unlawful for any person, firm or corporation operating or controlling any railroad running through or within the State of Oklahoma and engaged in the business of a common carrier to operate a track motor car, or transport its employees in a track motor car, which is not equipped with a substantial top for the protection of said employees from rain, snow, sleet and hail, and equipped with a transparent windshield sufficient in width and height to protect said employees therefrom, which windshield shall be of safety glass. Such a motor car shall also be equipped with an electric windshield wiper that will remove rain, snow and other moisture from the windshield thereof, and said windshield wiper shall be so devised that the driver of said motor car can start or stop said windshield wiper while he is driving the same.
Laws 1953, p. 319, § 1; Laws 1957, p. 480, § 1.
§40189. Transparent section.
Each such windshield shall contain a transparent section reasonably sufficient in width and height to give the operator of such car a view of the track ahead.
Laws 1953, p. 319, § 2.
§40190. Enforcement.
It shall be the duty of the Corporation Commission of the State of Oklahoma to enforce this act.
Laws 1953, p. 319, § 3; Laws 1957, p. 480, § 2.
§40191. Restrictions on requirement of physical examination Report not basis of damages.
It shall be unlawful for any person, partnership, association, or corporation, either for himself, herself, or itself, or in a representative or fiduciary capacity, to require any employee or applicant for employment, as a condition of employment or continued employment, to submit to, or take, a physical or medical examination, without providing such examination at no cost therefor to such employee or applicant for employment, or without furnishing, upon the request of the employee or applicant for employment within thirty (30) days after such examination, free of charge, to such employee or applicant for employment, a true and correct copy, either original or duplicate original, of the examiner's report of such examination. It shall further be unlawful for any such person, partnership, association or corporation to require any employee or applicant for employment to pay, either directly or indirectly, any part of the cost of any such examination, report, or copy of report. Provided that the report of any physical examination furnished in accordance with this section shall not be made the basis or predicate for any action in damages against the physician and surgeon making and furnishing such report.
Laws 1949, p. 286, § 2.
§40192. Violations of act.
Each and every violation of any provision of Section 1 of this act shall constitute a misdemeanor, punishable by a fine in any amount not exceeding One Hundred Dollars ($100.00).
Laws 1949, p. 286, § 2.
§40193. Contractors to employ 90% nonprofessional resident employees Injunctive relief.
No contract involving an obligation or expenditure of state funds, either wholly or in part, shall be entered into by any public official, employee, department, board, commission, agency or instrumentality of the state or any subdivision thereof, unless the contractor agrees that not less than ninety percent (90%) of the nonprofessional persons employed to work under or in pursuance of such contract will possess the residence requirements of qualified electors of the State of Oklahoma. Any contractor who does not agree to the foregoing, or who fails or refuses to observe the same, shall thereafter be disqualified to submit any bid, or to accept or enter into or be awarded any contract, involving an obligation or expenditure of state funds, for a period of two (2) years. On application of the Commissioner of Labor, or a deputy or representative of that office, or any aggrieved citizen, injunctive relief to enforce the provisions hereof shall be granted by the district court of any county in which the contract is entered into or is to be performed wholly or in part.
Laws 1957, p. 524, § 1.
§40194. Penalty.
Any corporation, partnership, firm or person contracting to do work for the State of Oklahoma who shall fail to employ at least ninety percent (90%) of the nonprofessional personnel used in the performance of said contract who are qualified residents, as defined above, of the State of Oklahoma, shall be guilty of a misdemeanor and upon conviction thereof shall pay a fine of One Hundred Dollars ($100.00). Each day work is done in performance of said contract in violation of this act shall be a separate offense.
Laws 1957, p. 524, § 2.
§40195. Exemption.
This act shall not apply when the same is in conflict with federal statutes, or regulations authorized by federal statutes.
Laws 1957, p. 525, § 3.
§40195.1. Discrimination prohibited in public work contracts.
All contracts of the State of Oklahoma for the construction of public works shall contain, and be construed as containing, a clause providing that discrimination by reason of race, creed or color will not be practiced by the contractor in employment of those who furnish labor or materials, nor will it be permitted by the department or agency procuring the construction of the public work for which the contract is executed.
Laws 1968, c. 277, § 1, emerg. eff. April 30, 1968.
§40196.1. Public policy.
It is hereby declared to be the policy of the State of Oklahoma that a wage of no less than the prevailing hourly rate of wages for work of a similar character in the locality in which the work is performed shall be paid to all workmen employed by or on behalf of any public body engaged in public works exclusive of maintenance work.
§40196.2. Definitions.
As used in this act, unless the context indicates otherwise:
1. "Construction" includes construction, reconstruction, improvement, enlargement, alteration, painting and decorating, or major repairs;
2. "Commissioner" means the Commissioner of Labor;
3. "Prevailing hourly rate of wages" means the wages and fringe benefits determined to be prevailing by the United States Department of Labor pursuant to the provisions of the Federal DavisBacon Act, Sections 276a through 276a5 of Title 40 of the United States Code;
4. "Locality" means the county where the physical work upon public works is performed;
5. "Maintenance work" means the repair, but not the replacement, of existing facilities when the size, type, or extent of the existing facilities is not thereby changed or increased;
6. "Public body" means the State of Oklahoma or any officer, board, commission or authority of the state, or other political subdivision, county, municipality, school district, or industrial trust or other entity issuing or causing the issuing of bonds where such bonds are to be used in whole or in part for construction and such bonds are supported by the faith and credit of the State of Oklahoma or any political subdivision or such bonds could become the obligation of the State of Oklahoma or other political subdivision;
7. "Public works" means all fixed works constructed for public use except works constructed by or for any public utility company or any drainage or conservation district, whether or not done under public supervision or direction or paid for wholly or in part out of public funds;
8. "Workmen" means laborers, workmen, and mechanics;
9. "Apprentice" or "Trainee" means a workman in a craft or trade who is approved for participation in an apprenticeship or trainee program approved by the Bureau of Apprenticeship and Training of the United States Department of Labor;
10. "Board" means the Wage Appeals Board;
11. "Contractor" means all prime and general contractors, subcontractors, independent contractors and persons engaged in contract labor who through negotiations or competitive bidding enter into contracts to furnish labor, materials, or both and the required equipment to perform the contract for a fixed price and who in pursuit of independent business undertake a job in whole or in part retaining substantial control of the method and manner of accomplishing the desired result and who possesses current identification numbers issued to them by the Oklahoma Tax Commission, the Oklahoma Employment Security Commission, the Internal Revenue Service, and the Social Security Administration;
12. "Construction on a force account basis" means construction of public works performed by a public body, using permanent personnel on its own payroll without hiring any outside supervision or direction; and
13. "Kickback" means the payment of money or any other thing of value to any contractor, his representative or agent by any workman, his representative or agent as a refund of any part of the compensation to which such workman is entitled to pursuant to the provisions of this act.
Amended by Laws 1985, c. 49, § 1, eff. Nov. 1, 1985.
§40196.2a. Application of Sections 196.1 to 196.14.
A. Sections 196.1 through 196.12 of this title and Sections 10 and 11 of this act shall apply only where the total cost of the project to be performed by contractors in connection with construction of any public work is Six Hundred Thousand Dollars ($600,000.00) or more.
B. No project involving sums in excess of Six Hundred Thousand Dollars ($600,000.00) shall be split into partial contracts involving sums of below Six Hundred Thousand Dollars ($600,000.00) for the purpose of avoiding the provisions of this section. All such partial contracts involving less than Six Hundred Thousand Dollars ($600,000.00) shall be void.
C. For purposes of this section, "project" means all work, materials, contracts, subcontracts or other things of value required to prepare the permanent facility of a public work for its intended use, including the erection, construction or improvement of any structure or building; but will not include land acquisition costs, architects' fees, engineering fees, planning and research costs or cost of furnishings not part of the permanent facility.
D. Additions to existing facilities shall be deemed to be separate projects if: 1. the existing facility has been in use for at least one (1) year; and
2. at least one (1) year has elapsed from the completion of the existing facility, or the most recent addition thereto, and the advertisement for bids for the contract or contracts for the addition.
Added by Laws 1984, c. 296, § 75, operative July 1, 1984. Amended by Laws 1985, c. 49, § 2, eff. Nov. 1, 1985; Laws 1986, c. 274, § 8, operative July 1, 1986.
§40196.3. Payment of prevailing hourly rate of wages Holidays and overtime Hauling of materials.
A. Not less than the prevailing hourly rate of wages for work of a similar character in the locality in which the work is performed, and not less than the prevailing hourly rate of wages for legal holiday and overtime work, shall be paid to all workmen employed by or on behalf of any public body engaged in the construction of public works, exclusive of maintenance work. Only such workmen as are directly employed by contractors or subcontractors in actual construction work on the site of the building or construction job shall be deemed to be employed upon public works.
B. When the hauling of materials or equipment includes some phase of construction other than the mere transportation to the site of the construction, workmen engaged in this dual capacity shall be deemed employed directly on public works.
Laws 1965, c. 334, § 3, emerg. eff. June 28, 1965.
§40196.4. Enforcement of provisions Rules and regulations Referring violations of certain tax laws to certain authorities.
A. The Commissioner shall investigate diligently as to any violations of this act, shall institute actions for penalties herein prescribed and to collect wages workmen are entitled to, and shall generally enforce the provisions hereof requiring or prohibiting any act or practice.
B. The Commissioner may promulgate rules and regulations for the purpose of carrying out the provisions of this act, in conformity with the standards prescribed herein.
C. The Commissioner shall refer evidence to the Oklahoma Tax Commission, the Oklahoma Employment Security Commission, the Internal Revenue Service, the Social Security Administration, the Attorney General, and the appropriate district attorney of violations of the provisions of Sections 1701 through 1707 of Title 68 of the Oklahoma Statutes which was discovered during investigation by the Commissioner authorized by the provisions of this act.
Amended by Laws 1985, c. 49, § 3, eff. Nov. 1, 1985.
§40196.5. Compliance by public bodies and contractors Violations.
A. Before any public body awards a contract for public works, it shall notify the Commissioner to ascertain the prevailing hourly rate of wages in the locality in which the work is to be performed, for each craft or type of workmen needed to execute the contract or project. The public body shall specify in the resolution or ordinance, and in the call for bids for the contract, what the prevailing hourly rate of wages in the locality is for each craft or type of workmen needed to execute the contract, also the general prevailing rate for legal holiday and overtime work, and it shall be mandatory upon the contractor to whom the contract is awarded, and upon any contractor under him, to pay not less than the specified rates to all workmen employed by them in the execution of the contract. The public body awarding the contract shall cause to be inserted in the contract a stipulation to the effect that not less than the prevailing hourly rate of wages as found by the Department or determined by the court on appeal shall be paid to all workmen performing work under the contract. It shall also require in all the contractor's bonds that the contractor include such provisions as will guarantee the faithful performance of the prevailing hourly wage clause as provided by contract. The public body awarding the contract shall insert in the contract stipulations to effectuate the provisions of this act, and provide that the responsibility of compliance is the obligation of the prime contractor. Provided, however, that once a contract has been advertised for bids, and a prevailing wage determined, such prevailing wage shall not be altered, until such time as the contract expires. Provided further, the contracting entity who awards a contract that is subject to this act shall within ten (10) days forward a copy of the award to the Commissioner.
B. Any public body which violates the provisions of this section shall be liable to pay to workmen the difference between the amount of wages actually paid to workmen and the amount of wages workmen are actually entitled to pursuant to the provisions of this act.
Amended by Laws 1985, c. 49, § 4, eff. Nov. 1, 1985.
§40196.5b. Notice of violations Retention of payments.
It shall be the duty of the public body awarding the contract to take notice of all violations of the provisions of this act committed in the course of the execution of the contract and when payments to the contractor become due pursuant to the provisions of the contract, said public body shall withhold and retain all sums and amounts due and owing as a result of any such violation. When the remaining funds are insufficient to cover such sums and amounts due, the Department of Labor shall determine whether the contractor is engaged in the construction of any other public works and shall notify the proper public body to withhold and cause to be withheld such additional funds as may be necessary to complete payment of any sums and amounts.
Added by Laws 1985, c. 49, § 5, eff. Nov. 1, 1985.
§40196.6. Determination of prevailing rates Objections Hearings Appeals.
A. The prevailing hourly rate of wages for this state shall be those filed in the Federal Register as determined by the U.S. Department of Labor, pursuant to the Federal DavisBacon Act and amendments thereto. Provided, in the absence of a Federal DavisBacon rate being determined in a given locality by the United States Department of Labor or if the rate for a rural locality is one that is determined by using metropolitan rates, the Commissioner shall investigate and determine the prevailing hourly rate of wages in the locality. Provided further, the Department of Labor of this state shall not adopt a rate for a rural locality that is determined by using metropolitan rates. The schedule of wages shall be divided into four construction categories: Building, residential, heavy and highway.
1. The construction of any of the following structures shall be in the buildingconstruction category: Alterations and additions to buildings; apartment buildings of at least five stories; arenas (enclosed); auditoriums; automobile parking garages; banks and financial buildings; barracks; churches; city halls; civic centers; commercial buildings; court houses; detention facilities; dormitories; farm buildings; fire stations; hospitals; hotels; industrial buildings; institutional buildings; libraries; mausoleums; motels; museums; nursing and convalescent facilities; office buildings; outpatient clinics; passenger and freight terminal buildings; police stations; post offices; power plants; prefabricated buildings; remodeling buildings; renovating buildings; restaurants; schools; service stations; shopping centers; stores; subway stations; theatres; warehouses; water and sewage treatment plants (buildings only); stadiums; chemical complexes or facilities; oil refineries; coke ovens; parking lots (incidental to a building or commercial project); and tunnels.
2. The construction of any of the following structures shall be in the residential construction category: Town or row houses; apartment buildings of less than five stories; single family houses; mobile home developments; multifamily houses; and married student housing.
3. The construction of any of the following structures shall be in the heavy construction category: Antenna towers; bridges (bascule, suspension and spandrel arch bridges, bridges designed for commercial navigation, bridges involving marine construction and other major bridges); breakwaters; caissons (other than building or highway); canals; channels; channel cutoffs; cofferdams; dams; dikes; docks; drainage projects; dredging projects; electrification projects (not incidental to building or commercial project); flood control projects; industrial incinerators (other than building); irrigation projects; jetties; kilns; land drainage (not incidental to other construction); land reclamation; levees; locks; pipelines; ponds; pumping stations (prefabricated dropin units); railroad construction (not incidental to a building or commercial project); reservoirs; revetments; sewage collection and disposal lines; sewers (sanitary, storm, etc.); shoreline maintenance; ski tows; storage tanks; swimming pools (outdoor); subways (other than stations and buildings); tipples; unsheltered piers and wharves; viaducts (other than highway); watermains; waterway construction; water supply lines (not incidental to building); wells; and water and sewage treatment plants (other than buildings).
4. The construction of any of the following structures shall be in the highway construction category: Alleys; base courses; bituminous treatments; bridle paths; concrete pavement; curbs; excavation and embankment (for road construction); fencing (highway); grade crossing elimination (overpasses or underpasses); guard rails on highway; highway signs; highway bridges (overpasses, underpasses, grade separation); medians; parking lots (not incidental to a building or commercial project); parkways; resurfacing streets and highways; roadbeds; roadways; runways; shoulders; stabilizing courses; storm sewers (incidental to road construction); street paving; surface courses; taxiways; and trails. A certified copy of periodic prevailing hourly rate of wages determinations shall be filed with the Secretary of State and with the Department of Labor in Oklahoma City. Copies shall be supplied to all persons requesting them within ten (10) days after such filing.
B. At any time within thirty (30) days after the certified copies of the determinations have been filed with the Secretary of State and the department, any person who may be affected thereby may object in writing to the determination or such part thereof as he deems objectionable by filing a written notice with the Board, stating the specific grounds of the objection. Within thirty (30) days of the receipt of the objection, the Board shall set a date for a hearing on the objection. The date for the hearing shall be within sixty (60) days of the receipt of the objection. Written notice of the time and place of the hearing shall be given to the objectors at least ten (10) days prior to the date set for the hearing.
C. The Board at its discretion may hear each written objection separately or consolidate for hearing any two or more written objections. At the hearing, the Commissioner shall introduce in evidence the investigation he instituted and such other facts which were considered at the time of the original determination which formed the basis for his determination. The Commissioner or any objectors thereafter may introduce such evidence as is material to the issues.
D. Within ten (10) days of the conclusion of the hearing, the Board must rule on the written objection and make such final determination as it believes the evidence warrants. Immediately upon such final determination, the Board shall file a certified copy of such final determination with the Secretary of State and in the records of the Department of Labor, and shall serve a copy of the final determination on all parties to the proceedings by personal service or by registered mail.
E. The final decision of the Board of the determined prevailing wages shall be subject to review when a copy of such final determination is filed in the district court where the work concerned is to be done. Any person affected, whether or not such person participated in the proceedings resulting in such final determination, may have the decision of the Board reviewed, in compliance with the provisions hereof. The filing of the final determination with the Secretary of State shall be considered a service of the final determination on persons not participating in the administrative proceeding resulting in such final determination. Any such appellant shall file in such court, in addition to the copy of final determination above required, a petition alleging that the determination was not within the Board's jurisdiction hereunder, or that such determination was not supported by substantial evidence, or both. The court may modify such determination, set it aside and remand the matter for new determination, or dismiss the appeal.
F. At any time before trial, any person affected by the final determination of the Board may intervene in the proceedings to review and be made a party to such proceedings.
G. Appeals from all final orders and judgments entered by a court in review of the final administrative decision of the Board may be taken directly to the Supreme Court. All proceedings in any court effecting a determination of the Board under the provisions of this act shall have priority in hearing and determination over all other civil proceedings pending in the court, except election contests.
Amended by Laws 1985, c. 49, § 6, eff. Nov. 1, 1985.
§40196.7. Findings as final Wages and hours not limited.
The findings of the Commissioner ascertaining and declaring the prevailing hourly rate of wages shall be final for the locality unless reviewed under the provisions of this act. Nothing herein shall be construed to prohibit the payment to any workmen employed on any public work of more than the prevailing rate of wages. Nothing herein shall be construed to limit the hours of work which may be performed by any workman in any particular period of time.
Laws 1965, c. 334, § 7, emerg. eff. June 28, 1965.
§40196.8. Oaths Depositions Subpoena powers.
The authorized representative of the Commissioner may administer oaths, take or cause to be taken the depositions of witnesses and require by subpoena the attendance and testimony of witnesses and the production of all books, records, and other evidence relative to any matter under investigation or hearing. The subpoena shall be signed and issued by the Commissioner's authorized representative. In case of failure of any person to comply with any subpoena lawfully issued under this section, or on the refusal of any witness to produce evidence or to testify to any matter regarding which he may be lawfully interrogated, it shall be the duty of any district court, or the judge thereof, upon application of the Commissioner's authorized representative, to compel obedience by proceedings for contempt, as in the case of disobedience of the requirements of a subpoena issued by such court or refusal to testify therein. The authorized representative of the Commissioner shall have the power to certify the official acts.
Laws 1965, c. 334, § 8, emerg. eff. June 28, 1965.
§40196.9. Wage records Copies Investigation and audit.
A. The contractor or the officer of the public body in charge of the project shall keep an accurate record of each workman showing his name, address, social security number, work classification, hourly wage paid, total paid and overtime hourly wage paid and total paid and the occupation of each workman employed by them, in connection with the public work, and showing also the actual wages paid to each workman, which record shall be certified and shall be open at all reasonable hours to the inspection of the Department or public body awarding the contract, its officers and agents at the principal office of the contractor.
B. Each contractor, within ten (10) days after receipt of a written request from the Commissioner, the public body who awarded the contract, or both, shall forward a certified copy of the records to the person making the request. A workman shall receive, upon written request to a contractor or the Commissioner, a certified copy of the record of said workman.
C. If the Commissioner, after investigation and audit of payroll records, finds that workmen were paid less than the prevailing hourly rate of wages provided by the contract, the Commissioner shall send written notice to the contractor and the awarding entity of the noncompliance. Said written notice of noncompliance shall specify in detail all violations disclosed during such investigation and audit. The contractor shall have ten (10) days after receipt of the written notice of noncompliance in which to comply or to object to said findings by submitting a written request for an administrative hearing before the Commissioner. An objection to said finding shall be submitted in writing at the same time said hearing request is submitted and such objection shall contain specific, detailed and sufficient grounds for such objection. The Commissioner shall make the final determination as to the merits of any objection. Upon conclusion of said hearing and determination by the Commissioner that the contractor is in noncompliance, the contractor shall be liable to pay any workman the amount of wages due or the difference between the amount of wages actually paid and the amount of wages actually entitled to, as the case may be, in addition to interest accrued on such amount at an annual rate of twenty percent (20%). The contractor shall also be liable for the sum of One Hundred Dollars ($100.00) for each day such contractor fails to comply with such order issued pursuant to the provisions of Section 196.11a of this title.
D. Upon final determination of noncompliance of a contractor with the provisions of this act, the Commissioner may, to recover the cost of such audit, hold such contractor liable for an additional amount equal to ten percent (10%) of the amount of deficiencies found as the result of said audit. The Commissioner shall waive such amount if the amount of deficiencies is satisfied within ten (10) days after such contractor has been notified by certified mail of the findings of the Commissioner. All monies recovered pursuant to the provisions of this subsection shall be placed in the General Revenue Fund of this state.
Amended by Laws 1984, c. 296, § 76, operative July 1, 1984; Laws 1985, c. 49, § 7, eff. Nov. 1, 1985.
§40196.9a. Certain contractors ineligible to bid on public work contracts Monthly list.
A. Any contractor convicted of violating the provisions of this act or Sections 1701 through 1707 of Title 68 of the Oklahoma Statutes or determined by the Commissioner to have violated the provisions of Sections 196.1 through 196.12 of Title 40 of the Oklahoma Statutes or Sections 10 and 11 of this act shall be ineligible to bid on or be awarded any public works contract or to perform any construction work in any manner for any public body for a period of two (2) years from the date of such conviction or determination. Any firm, partnership, corporation or other entity in which such ineligible contractor is an officer, stockholder or has a financial interest or supervises or directs work shall be ineligible to bid on or be awarded any public works contract or perform any construction work in any manner for any public body for a period of two (2) years from the date of such conviction or determination.
B. Beginning November 1, 1986, a contractor shall not be eligible to bid on a public works project unless the contractor has submitted valid payroll information to the Wage and Hour Division of the Employment Standards Administration of the United States Department of Labor. The information required to be submitted pursuant to the provisions of this subsection shall be the same as that information solicited by the United States Department of Labor pursuant to the Federal DavisBacon Act. All bids submitted on a public works project by a contractor shall include an affidavit from the contractor that the contractor is in compliance with the provisions of this subsection.
C. The Commissioner shall compile a monthly list which shall include:
1. the names of all contractors which the Commissioner has found to be in noncompliance with the provisions of this act within the previous two (2) years as of the date of such list;
2. the names of all contractors which the Commissioner has found to have failed to submit said payroll information as set forth in subsection B of this section within the previous two (2) years as of the date of such list;
3. the dates on which the latest violations of such contractors occurred; and
4. the names of all persons who have been convicted of violating the provisions of Section 10 of this act.
Upon request, the Commissioner shall mail such monthly list to any public body in this state which may award public works contracts. It shall be the duty of the public body to hold such contractor ineligible to bid on or to be awarded any public works contract for said period of time required in subsection A of this section and to hold such person ineligible to perform any construction work in any manner for any public body pursuant to subsection B of Section 10 of this act.
Added by Laws 1985, c. 49, § 8, eff. Nov. 1, 1985.
§40196.10. Actions by workman.
Any workman employed by the contractor or by any subcontractor under the contractor who shall be paid for his services in a sum less than the stipulated rates for work done under the contract shall have a right of action for whatever difference there may be between the amount so paid and the rates provided by the contract and an action brought to recover same shall be deemed to be a suit for wages, and any and all judgments entered therein shall have the same force and effect as other judgments for wages. The prevailing party in any such action shall be entitled to a reasonable attorney's fee and court costs.
Laws 1965, c. 334, § 10, emerg. eff. June 28, 1965; Laws 1981, c. 110, § 6.
§40196.10a. Employment of registered apprentices and trainees.
Nothing in this act shall prevent the employment of registered apprentices or trainees as defined in Section 196.2 of Title 40 of the Oklahoma Statutes.
Laws 1981, c. 110, § 7.
§40196.11. Violations Remedies.
Any officer, agent or representative of any public body who knowingly violates or omits to comply with any of the provisions of Sections 196.1 through 196.12 of this title, any contractor, or agent or representative thereof, doing public work who neglects to keep an accurate record of the names, occupation, and actual wages paid to each workman employed by him, in connection with the public work pursuant to the provisions of Section 196.9 of this title, or who refuses to allow access to same at any reasonable hour to any person authorized pursuant to the provisions of Section 196.9 of this title to inspect same, and any contractor, or agent or representative thereof, doing public work who refuses to allow access to any public works project to the Commissioner or his duly authorized representative authorized pursuant to the provisions of Section 196.4 of this title to investigate violations of the provisions of this act upon conviction shall be guilty of a misdemeanor and shall be punished by a fine not to exceed One Thousand Dollars ($1,000.00) or by imprisonment in the county jail for not to exceed six (6) months or by both such fine and imprisonment. In addition, such person shall be subject to a cease and desist order of the Commissioner, court injunction or mandamus, and any other remedy of law provided by Sections 196.1 through 196.12 of this title.
Amended by Laws 1984, c. 296, § 77, operative July 1, 1984; Laws 1985, c. 49, § 9, eff. Nov. 1, 1985.
§40196.11a. Cease and desist order.
A. In addition to other powers confirmed by this act, the Commissioner shall have power to order any person, firm, corporation, corporate officers, trustees, or any managing official of any municipal corporation, state agency or political subdivision to cease violating any provision of this act, or lawful rule or regulation issued pursuant to this act. A certified copy of such order shall be mailed to the person so violating the provisions of this act.
B. Any order issued by the Commissioner may be enforced in the district court in any action for an injunction or writ of mandamus upon the petition of the district attorney or Attorney General. Provided, further, an injunction, without bond, may be granted by the district court to the Commissioner, for the purpose of enforcing this act.
Laws 1981, c. 110, § 9.
§40196.12. Exemptions.
The provisions of this act shall not apply to the Department of Transportation of this state. The provisions of this act shall not apply to the Oklahoma Turnpike Authority in the construction of roads.
Laws 1965, c. 334, § 12, emerg. eff. June 28, 1965; Laws 1981, c. 110, § 10.
§40-196.13. Kickbacks - Penalty.
A. Any person who knowingly makes or receives, directly or indirectly, a kickback shall be guilty of a felony and, upon conviction, shall be punished by a fine not to exceed Ten Thousand Dollars ($10,000.00) or double the amount of the kickback or by imprisonment in the State Penitentiary for a period not to exceed five (5) years, or both such fine and imprisonment.
B. Any person who is convicted of violating the provisions of subsection A of this section shall be ineligible to perform any construction work in any manner for any public body.
Added by Laws 1985, c. 49, § 10, eff. Nov. 1, 1985. Amended by Laws 1997, c. 133, § 456, eff. July 1, 1999; Laws 1999, 1st Ex.Sess., c. 5, § 333, eff. July 1, 1999.
NOTE: Laws 1998, 1st Ex.Sess., c. 2, § 23 amended the effective date of Laws 1997, c. 133, § 456 from July 1, 1998, to July 1, 1999.
§40196.14. Residency of laborers and mechanics Stipulating prevailing wage.
A. Notwithstanding the provisions of paragraph 4 of Section 196.2 of Title 40 of the Oklahoma Statutes, a public body may write into a contract provisions requiring a certain percentage of laborers and mechanics in each craft, or a total percent of all workmen employed on the public works project be residents of a school district, or municipality, or county commissioner district as the case may be, without a resolution or ordinance.
B. Notwithstanding Section 196.2a of Title 40 of the Oklahoma Statutes, a public body may stipulate in a contract that prevailing wages will be applicable on a public work project.
Added by Laws 1985, c. 49, § 11, eff. Nov. 1, 1985.
§40197.1. Declarations.
The welfare of the State of Oklahoma demands that the working people of Oklahoma be protected from conditions of labor which have a pernicious effect on their health or morals. The State of Oklahoma, therefore, exercising herein its police and sovereign power, declares that inadequate wages and insanitary conditions of labor exert such pernicious effect.
Laws 1965, c. 427, § 1, emerg. eff. July 8, 1965.
§40197.2. Minimum wages established.
It shall be unlawful to employ workers in any industry or occupation within the State of Oklahoma under conditions of labor detrimental to their health or morals and it shall be unlawful to employ workers in any industry within the State of Oklahoma at wages which are not adequate for their maintenance. Except as otherwise provided in the Oklahoma Minimum Wage Act, no employer within the State of Oklahoma shall pay any employee a wage of less than the current federal minimum wage for all hours worked.
Amended by Laws 1983, c. 60, § 1, eff. Nov. 1, 1983.
§40197.3. Wage and Hour Commission Membership Tenure Compensation Chairman.
A. The Wage and Hour Commission is hereby terminated and all powers and duties of such Commission are transferred to the Commissioner of Labor. All personnel, funds, financial obligations and encumbrances, records, equipment, furniture, fixtures, files and supplies under the control of the Wage and Hour Commission are transferred to the Commissioner of Labor as of the effective date of this act.
B. The Commissioner of Labor shall establish, pursuant to this act, such standards of wages and conditions of labor for employees within the State of Oklahoma as shall be reasonable and not detrimental to health and morals.
Laws 1965, c. 427, § 3, emerg. eff. July 8, 1965; Laws 1978, c. 47, § 1, eff. July 1, 1978.
§40197.4. Definitions.
As used in this act:
(a) "Commissioner" means the Commissioner of Labor;
(b) "Wage" means compensation due to an employee by reason of his employment, payable in legal tender of the United States or checks on banks convertible into cash on demand at full face value, subject to such deductions, charges or allowances as may be permitted by law;
(c) "Employ" includes to suffer or to permit to work;
(d) "Employer" means any individual, partnership, association, corporation, business trust, or any person or group of persons, hiring more than ten fulltime employees or equivalent at any one location or place of business; provided, however, if an employer has less than ten fulltime employees or equivalent at any one location or place of business but does a gross business of more than One Hundred Thousand Dollars ($100,000.00) annually, said employer shall not be exempt under the provisions of this act.
This act shall not apply to employers subject to the Fair Labor Standards Act of 1938, as amended, and who are paying the minimum wage under the provisions of said act, nor to employers whose employees are exempt under paragraph (e) of this section.
(e) "Employee" includes any individual employed by an employer but shall not include:
(1) An individual employed on a farm, in the employ of any person, in connection with the cultivation of the soil, or in connection with raising or harvesting any agricultural commodity, including raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and furbearing animals and wildlife, or in the employ of the owner or tenant or other operator of a farm in connection with the operation, management, conservation, improvement or maintenance of such farm and its tools and equipment;
(2) Any individual employed in domestic service in or about a private home;
(3) Any individual employed by the United States government;
(4) Any individual working as a volunteer in a charitable, religious or other nonprofit organization;
(5) Any newspaper vendor or carrier;
(6) Any employee of any carrier subject to regulation by Part I of the Interstate Commerce Act;
(7) Any employee of any employer who is subject to the provisions of any Federal Fair Labor Standards Act or to any Federal Wage and Hour Law now in effect or enacted hereafter; and who is paying the minimum wage under the provisions of this act;
(8) Any employee employed in a bona fide executive, administrative or professional capacity, or in the capacity of outside salesman;
(9) Any person employed as parttime employee not on permanent status. A parttime employee is defined as an employee who is employed less than twentyfive (25) hours a week;
(10) Any person who is less than eighteen (18) years of age and is not a high school graduate or a graduate of a vocational training program, and any person who is less than twentytwo (22) years of age and who is a student regularly enrolled in a high school, college, university or vocational training program;
(11) Any individual employed in a feedstore operated primarily for the benefit and use of farmers and ranchers; or
(12) Any individual working as a reserve force deputy sheriff.
Laws 1965, c. 427, § 4; Laws 1971, c. 87, § 1, eff. July 1, 1971; Laws 1977, c. 266, § 3, eff. Oct. 1, 1977; Laws 1978, c. 47, § 2, eff. July 1, 1978; Laws 1981, c. 72, § 4.
§40197.5. Employees covered by act.
Every employer shall pay to each of his employees who have reached eighteen (18) years of age wages at a rate of not less than Two Dollars ($2.00) per hour. Regardless of other provisions of the Oklahoma Minimum Wage Act, every employee of the State of Oklahoma or any lessee or concessionaire thereof is hereby specifically covered by the Oklahoma Minimum Wage Act.
Amended by Laws 1983, c. 60, § 2, eff. Nov. 1, 1983.
§40197.6. Posting of notice.
On and after August 1, 1965, every employer, subject to this act, shall post a notice or notices of the pertinent provisions of this act in such form as may be prescribed and furnished by the Commissioner. Said notice shall be not less than eleven (11) inches by seventeen (17) inches in size and shall be displayed in such a manner so as to be accessible to all employees in each establishment under the control of the employer. The Commissioner, or his duly authorized representative, may, for the purpose of determining whether such notice has been properly posted, enter, during business hours, upon the premises of any employer subject to this act.
Laws 1965, c. 427, § 6, emerg. eff. July 8, 1965; Laws 1978, c. 47, § 3, eff. July 1, 1978.
§40197.7. Investigation of complaints.
Upon verified complaint by an employee or former employee that an employer has violated the provisions of Section 197.5 of this title by failure to pay the minimum wage thereby established, the Commissioner, or his authorized representative, is hereby empowered to make such investigation as deemed necessary to ascertain the facts concerning such charge. The Commissioner shall have the power to administer oaths and affirmations, require sworn statements, certify to official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence memoranda, and other records deemed necessary as evidence in connection with the investigation of any alleged violation of Section 197.5 of this title. All information obtained by the Commissioner, or his duly authorized representatives, shall be confidential and, except for the finding of the need for additional wages, as provided by Section 197.8 of this title, and information which is necessarily disclosed in court proceedings provided by Section 197.9 or 197.10 of this title, such information shall not be disclosed to any person.
Laws 1965, c. 427, § 7, emerg. eff. July 8, 1965; Laws 1978, c. 47, § 4, eff. July 1, 1978.
§40197.8. Findings Payment of amount due.
The Commissioner, after investigation, shall promptly make his finding in writing as to whether or not additional wages are due the employee. If the Commissioner finds that additional wages are due, ten percent (10%) of such amount due shall be added as penalty for such wage deficiency. The Commissioner shall mail said findings to the employer and to the employee by certified mail. Payment by the employer and acceptance by the employee of the amount so determined by the Commissioner shall absolve the employer of any further liability to the employee with respect to wages claimed by the employee for the period he was employed by the employer.
Laws 1965, c. 427, § 8, emerg. eff. July 8, 1965; Laws 1978, c. 47, § 5, eff. July 1, 1978.
§40197.9. Findings by court Double damages Costs and attorney fees Defenses.
Any employer who is found by a court of competent jurisdiction to have paid an employee wages less than those to which such employee is entitled, under or by virtue of this act, shall be liable to such employee for double the full amount of such wages, less any amount actually paid to such employee by the employer, and for court costs, and such reasonable attorney fees as may be allowed by the court, which in no case shall be less than One Hundred Dollars ($100.00). Any agreement between such employee and the employer to work for less than such wage rate shall be no defense to such action.
Laws 1965, c. 427, § 9, emerg. eff. July 8, 1965.
§40197.10. Assignment of wage claim.
Section 197.10 At the request of any employee who has been found by the Commissioner to have been paid wages less than those to which such employee is entitled, under or by virtue of this act, the Commissioner shall take an assignment of such wage claim in trust for the assigning employee and shall bring legal action necessary to collect such claim; and if the Commissioner prevails in such action the employer shall be liable to pay the Department of Labor double the full amount of such wages, and the court costs. The Commissioner shall not be required to pay a filing fee in connection with any such action. The Commissioner in such an action shall be represented by the Attorney General.
Laws 1965, c. 427, § 10, emerg. eff. July 8, 1965; Laws 1978, c. 47, § 6, eff. July 1, 1978.
§40197.11. Exceptions.
Section 197.11 The Commissioner, to the extent necessary in order to prevent curtailment of opportunities for employment, shall by regulations provide for:
(a) the employment of learners, of apprentices, and of messengers employed primarily in delivering letters and messages, under special certificates issued pursuant to regulations of the Commissioner, at such wages lower than the minimum wage applicable and subject to such limitations as to time, number, proportion, and length of service as the Commissioner shall prescribe; and
(b) the employment of individuals whose earning capacity is impaired by age or physical or mental deficiency or injury, under special certificates issued by the Commissioner, at such wages lower than the minimum wage and for such period as shall be fixed in such certificates; and
(c) any individual employed by any state, county, city, town, municipal corporation or quasimunicipal corporation, political subdivision, or any instrumentality thereof; and
(d) students and regular attendants at any institution of higher learning, either public or private.
Laws 1965, c. 427, § 11, emerg. eff. July 8, 1965; Laws 1978, c. 47, § 7, eff. July 1, 1978.
§40197.12. Rules, regulations and standards.
Section 197.12 The Commissioner is hereby authorized and empowered to adopt such rules, regulations and standards as he deems necessary and appropriate to carry out the provisions of this act; provided that the adoption of all such rules, regulations and standards and all administrative proceedings of the Commissioner shall be governed by applicable provisions of Sections 301325, inclusive, of Title 75 of the Oklahoma Statutes.
Laws 1965, c. 427, § 12, emerg. eff. July 8, 1965; Laws 1978, c. 47, § 8, eff. July 1, 1978.
§40197.13. Penalty for failure to pay minimum compensation.
Any employer, or the officer or agent of any corporation, who pays or agrees to pay to any employee less than the rate of compensation required by Sections 197.2 and 197.5 of this title, upon conviction, shall be guilty of a misdemeanor and shall be punished by a fine of not more than Five Hundred Dollars ($500.00), or by imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment.
Amended by Laws 1983, c. 60, § 3, eff. Nov. 1, 1983.
§40197.14. Penalty for failure to post notice.
Any employer failing to post the notice required by Section 6 of this act shall be punished by a fine of not to exceed Twentyfive Dollars ($25.00), and each week he fails to post such notice shall constitute a separate offense.
Laws 1965, c. 427, § 14, emerg. eff. July 8, 1965.
§40197.15. Citation.
This act shall be known and may be cited as the "Oklahoma Minimum Wage Act".
Laws 1965, c. 427, § 15, emerg. eff. July 8, 1965.
§40197.16. Tips, gratuities, meals or lodging Credit for.
To compute the minimum wage of any employee coming within the purview of this act, credit toward the minimum required wage must be given for any tips or gratuities, meals or lodging received by the employee up to but not exceeding fifty percent (50%) of said wage.
Laws 1971, c. 70, § 2, eff. July 1, 1971; Laws 1980, c. 203, § 2, eff. Oct. 1, 1980.
§40197.17. Uniforms Credit for.
Business establishments that furnish uniforms to their employees may take credit against the minimum wage in an amount equal to the reasonable cost of furnishing the uniforms.
Laws 1971, c. 70, § 3, eff. July 1, 1971.
§40198.1. Payment of discriminatory wages based on employee's sex prohibited.
It shall be unlawful for any employer within the State of Oklahoma to willfully pay wages to women employees at a rate less than the rate at which he pays any employee of the opposite sex for comparable work on jobs which have comparable requirements relating to skill, effort and responsibility, except where such payment is made pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on any factor other than sex.
Laws 1965, c. 494, § 1, emerg. eff. July 15, 1965.
§40198.2. Enforcement Penalties.
It shall be the duty of the Commissioner of Labor to enforce the provisions of this act. Whenever the Commissioner is informed of any violations thereof, it shall be his duty to investigate same and, in his discretion, said Commissioner is hereby authorized to institute proceedings for the enforcement of penalties herein provided before any court of competent jurisdiction. Any employer who violates the provisions of this act shall be deemed guilty of a misdemeanor and shall upon conviction thereof, be punished by a fine of not less than Twentyfive Dollars ($25.00) nor more than One Hundred Dollars ($100.00).
Laws 1965, c. 494, § 2, emerg. eff. July 15, 1965.
§40199. Certain actions against employees prohibited.
A. It shall be a misdemeanor for any employer, as defined in Section 165.1 of this title, or his agent to discharge, penalize or in any other manner discriminate against any employee because:
1. The employee has filed a complaint with his employer, or the Commissioner of Labor or his authorized representative, to enforce any provision of Sections 71 through 198.2 of this title;
2. The employee has caused to be instituted a proceeding or investigation related to an alleged violation of any provision of Sections 71 through 198.2 of this title; or
3. The employee has testified or is about to testify in an investigation or proceeding under this title.
B. Every employer, as defined in Section 165.1 of this title, or his agent shall be guilty of a misdemeanor if:
1. The filing of a complaint with the employer, Commissioner of Labor or his authorized representative, or the taking of any action directly related to the complaint by any employee is a substantial and material factor in the discharge, penalization of or any other discrimination against the employee by the employer or his agent; or
2. The employer or his agent has acted in a manner which has the effect of discouraging, restraining, coercing or interfering with any employee in the exercise of the employee's rights contained in Sections 71 through 198.2 of this title.
C. Every person convicted of violating a prohibition of this section shall be fined not less than Fifty Dollars ($50.00) nor more than Two Hundred Dollars ($200.00) or imprisoned in the county jail for not less than five (5) days nor more than thirty (30) days, or both.
§40199.1. Recruiting of employment to replace employees involved in a strike or lockout prohibited Exceptions.
It shall be unlawful for any person, partnership, agency, firm or corporation, labor organization or officer or agent thereof, to knowingly recruit, procure, supply or refer any person (excluding persons who are permanent employees of the employer involved in such strike or lockout) who has customarily and repeatedly offered himself for employment in the place of employees involved in strikes or lockouts for employment in place of an employee in a business or industry where a strike or lockout exists.
The provisions of this act shall not apply to services or work performed by a salaried or supervisory employee of a business or industry where a strike or lockout exists, or a person, firm or corporation in his or its usual trade, occupation or business; provided that such trade, occupation or business is not usually the furnishing of strikebreakers in any labor strike or lockout; and provided further, that the said person, firm, or corporation hiring, recruiting, securing or offering to secure employment shall, if a person or an unincorporated firm, be a bona fide resident of the State of Oklahoma for a period of six (6) months prior to the strike or lockout, or if a corporation, be chartered or duly licensed to do business in the State of Oklahoma for a period of six (6) months prior to the strike or lockout.
Laws 1973, c. 165, § 1.
§40199.2. Acceptance of employment to replace employees involved in a strike or lockout prohibited.
It shall be unlawful for any person (excluding persons who are permanent employees of the employer involved in such strike or lockout) who has customarily and repeatedly offered himself for employment in place of employees involved in a strike or lockout to knowingly take, or offer to take, the place in employment of employees involved in a strike or lockout.
Laws 1973, c. 165, § 2.
§40199.3. Notice as to strike or lockout.
It shall be unlawful for any person, partnership, agency, firm or corporation, or officer or agent thereof, to recruit, solicit or advertise for employees, or refer persons (excluding employees or persons who are permanent employees of the employer involved in such strike or lockout) to employment, in place of employees involved in a strike or lockout, without adequate notice to such person, or in such advertisement, that there is a strike or lockout at the place at which employment is offered, and that the employment offered is in place of employee involved in such strike or lockout.
Laws 1973, c. 165, § 3.
§40199.4. Penalties.
Any person, partnership, agency, firm or corporation violating this act shall be guilty of a misdemeanor and shall be punished by a fine of not less than Five Hundred Dollars ($500.00) nor more than Two Thousand Five Hundred Dollars ($2,500.00), or by imprisonment in the county jail for not less than sixty (60) days nor more than one (1) year, or both, at the discretion of the court.
Laws 1973, c. 165, § 4.
§40-200. Searches of employee-owned vehicles.
Employers of this state that conduct employee-owned vehicle searches of its employees shall conduct such search on the property of the employer only. Searches that are conducted on property not owned or rented by the employer shall require a search warrant issued according to law.
Added by Laws 2003, c. 222, § 1, eff. Nov. 1, 2003.
§40226. Penalties.
(a) Whoever makes a false statement or representation knowing it to be false or knowingly fails to disclose a material fact, to obtain or increase any benefit or other payment under this act or under the unemployment compensation law of any state or of the federal government, either for himself or for any other person, shall be guilty of a misdemeanor and shall be punished by a fine of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00), or by imprisonment for not longer than ninety (90) days, or by both such fine and imprisonment; and each such false statement or representation or failure to disclose a material fact shall constitute a separate offense.
(b) Any employing unit or any officer or agent of an employing unit or any other person who makes a false statement or representation knowing it to be false, or who knowingly fails to disclose a material fact, to prevent or reduce the payment of benefits to any individual entitled thereto, or to avoid becoming or remaining a subject employer or to avoid or reduce any contribution or other payment required from an employing unit under this act or under the unemployment compensation law of any state or of the federal government, or who wilfully fails or refuses to make or to furnish any reports required hereunder or to produce or permit the inspection or copying of records as required hereunder, shall be guilty of a misdemeanor and shall be punished by a fine of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00), or by imprisonment for not longer than ninety (90) days, or by both fine and imprisonment; and each such false statement or representation or failure to disclose a material fact, and each day of such failure or refusal shall constitute a separate offense.
(c) Any person who shall wilfully violate any provision of this act or any order, rule, or regulation thereunder, the violation of which is made unlawful or the observance of which is required under the terms of this act, and for which a penalty is neither prescribed in this act nor provided by any other applicable statute, shall be guilty of a misdemeanor and shall be punished by a fine of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00), or by imprisonment for not longer than ninety (90) days, or by both such fine and imprisonment, and each day such violation continues shall be deemed to be a separate offense.
(d) If any employer fails or refuses to file contribution and wage reports required under the provisions of this act within fifteen (15) days after written notice has been mailed to the employer by the Commission or its representative, a penalty of ten percent (10%) on the total contributions due shall be added thereto, collected and paid. Penalty collected pursuant to this subsection shall be paid into the Unemployment Compensation Fund.
(e) If an employer fails or refuses to pay any contributions required under the provisions of this act after such contributions have become delinquent within thirty (30) days after written request for such payment had been mailed to the employer by the Commission or its representative, a penalty of five percent (5%) on the total contributions due shall be added thereto, collected and paid. Penalty collected pursuant to this subsection shall be paid into the Unemployment Compensation Fund.
(f) If any employee or member of the Board of Review or the Commission or any employee of the Commission, in violation of the provisions of Section 221 (l), makes any disclosure of information obtained from any employing unit or individual in the administration of this act, or if any person who has obtained any list of applicants for work, or of claimants or recipients of benefits, under this act shall use or permit the use of such list for any political purpose, he shall be guilty of a misdemeanor and shall be punished by a fine of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00), or imprisoned for not longer than ninety (90) days, or both.
Laws 1977, c. 20, § 4; Laws 1980, c. 323, § 9102, emerg. eff. June 15, 1980.
§40401. Short title.
Sections 401 through 424 of this title shall be known and may be cited as the Oklahoma Occupational Health and Safety Standards Act.
Amended by Laws 1984, c. 147, § 1, operative July 1, 1984.
§40402. Occupational health and safety Definitions.
As used in the Oklahoma Occupational Health and Safety Standards Act:
1. "Employer" means the state and all its political subdivisions which has in its employ one or more individuals performing services for it in employment; and
2. "Employee" means a person permitted to work by an employer in employment; and
3. "Place of employment" means the plant or premises in or about which an employee is permitted to work; and
4. "Department" means the Oklahoma Department of Labor; and
5. "Commissioner" means the Commissioner of Labor; and
6. "Division" means the Health and Safety Education and Training Division; and
7. "Standard" has the same meaning as, and includes, the words "regulation", "code", and "rule"; and
8. "National consensus standards" means any occupational safety or health standard adopted under a consensus method by a nationally recognized standardsproducing organization; and
9. "Employment" includes all services for pay pursuant to a contract of hire except service in agricultural employment.
Laws 1970, c. 287, § 2, operative July 1, 1970; Laws 1984, c. 147, § 2, operative July 1, 1984; Laws 1992, c. 305, § 2, emerg. eff. May 27, 1992.
§40403. Employer's duties and responsibilities.
A. Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees, commensurate with the Occupational Safety and Health Act of 1970.
B. No person shall discharge, discriminate or take adverse personnel action against any employee because such employee has filed any complaint, or instituted or caused to be instituted any proceeding under or related to this act, or has testified or is about to testify in any such proceeding, or because of the exercise by such employee on behalf of himself or herself or others of any right affected by this act.
C. Within forty-eight (48) hours after the occurrence of an employment accident which is fatal to one or more employees or which results in hospitalization of five or more employees, the employer of any employees so injured or killed shall report the accident in writing to the Oklahoma City office of the Oklahoma Department of Labor, in a manner prescribed by the Department. The Commissioner of Labor may require such additional reports as he deems necessary, including the official death certificate from the Oklahoma State Department of Health.
D. No rule or standard promulgated under this act shall, or shall be deemed to, establish legal standards of conduct or legal duties, the violation of which standards or duties would constitute negligence or gross negligence in any civil proceeding.
E. Every employer having twenty-five (25) or more full- or part-time employees shall:
1. Designate an employee who shall coordinate all safety programs of the employer;
2. Provide safety classes to each type or class of employee no less than quarterly, except that public schools shall only be required to provide safety classes or instruction to their employees during the school year. Provided further, public school employees who are certified personnel and are in compliance with federal OSHA occupational safety and health standards shall be exempt from such safety classes or instruction and shall not be included in the computation of the number of employees set forth in subsection E of this section for determining the requirement of such safety classes or instruction; and
3. Cooperate with the Department of Labor including allowing any announced inspection of the premises for the purpose of determining compliance with this subsection.
The provisions of this subsection shall not apply to any hospital which is subject to the rules of the U.S. Department of Health and Human Services, Health Care Financing Administration (HCFA), as set forth in 42 CFR Parts 405, 412, 416, 417, 440, 441, 456, 482 and 489; Medicare and Medicaid Programs; Conditions of Participation for Hospitals, Final Regulations.
Laws 1970, c. 287, § 3, operative July 1, 1970; Laws 1992, c. 305, § 3, emerg. eff. May 27, 1992; Laws 1993, c. 349, § 19, eff. Sept. 1, 1993; Laws 1994, c. 163, § 1, emerg. eff. May 6, 1994.
§40404. Removal or damage of safeguards Failure to obey safety orders.
No employee shall willfully remove, displace, damage, destroy or carry off any safety device or safeguard furnished or provided for use in any employment or place of employment, or interfere in any way with the use thereof by any other person. No employee or agent of employees shall interfere with the use of any method or process adopted for the protection of any employee in such employment or place of employment, or of any other person lawfully within such place of employment, or fail to follow and obey orders necessary to protect the life, health and safety of such employees and any other person lawfully within such place of employment.
Laws 1970, c. 287, § 4, operative July 1, 1970.
§40407. Adoption of health and safety standards Promulgation Limitation.
A. The Commissioner pursuant to the provisions of Sections 301 through 326 of Title 75 of the Oklahoma Statutes may prescribe, adopt, promulgate, amend and rescind health and safety standards, which shall be derived from national consensus standards designed for the prevention of accidents in all places of employment and for the protection of the life, health and safety of employees.
B. Authority to promulgate health and safety standards is limited to that not granted to other state departments or other legally constituted state boards or commissions.
Amended by Laws 1984, c. 147, § 3, operative July 1, 1984.
§40410. Administration and enforcement.
A. The Commissioner shall administer and enforce the provisions of the Oklahoma Occupational Health and Safety Standards Act.
1. It is not intended that the Oklahoma Occupational Health and Safety Standards Act be an issue or be involved in any labor dispute, or be used or asserted to advantage in collective bargaining by employer or employee, or by their respective representatives.
2. The Commissioner shall cause to be inspected any place of employment to ensure the presence of a functioning safety and health program which meets the requirements of Title 40 of the Oklahoma Statutes and adopted and referenced standards.
B. Subject to the provisions of subsection A of this section, authorized employees of the Department may enter and inspect places of employment, including premises and buildings under construction, demolition or repair, at all reasonable times, in order to investigate such facts, conditions, practices or matters as deemed appropriate, and to determine if any person is violating any provisions of the Oklahoma Occupational Health and Safety Standards Act or any standard promulgated pursuant to the Oklahoma Occupational Health and Safety Standards Act.
C. Upon receipt by the Department of a signed complaint of violation of any of the provisions of the Oklahoma Occupational Health and Safety Standards Act or of any standard promulgated pursuant to the Oklahoma Occupational Health and Safety Standards Act, an authorized employee shall investigate the alleged violation and inform the complainant of the result of the investigation.
D. If upon inspection or investigation, or whenever the Commissioner determines a violation of the Oklahoma Occupational Health and Safety Standards Act or of any standard, rule, or regulation promulgated pursuant to the provisions of the Oklahoma Occupational Health and Safety Standards Act has occurred, the Commissioner shall give written notice to the alleged violator specifying the cause of the determination. Such notice shall require that the violations be corrected and specify the terms of such correction or that the alleged violator appear before the Commissioner at a time and place specified in the notice and answer the charges. The notice shall be delivered to the alleged violator in accordance with the provisions of subsection G of this section.
E. The Commissioner or his designee shall afford the alleged violator an opportunity for a fair hearing in accordance with the provisions of subsection H of this section. On the basis of the evidence produced at the hearing, the Commissioner shall make findings of fact and conclusions of law and enter an order thereon. The Commissioner shall give written notice of such order to the alleged violator and to such other persons as shall have appeared at the hearing and made written request for notice of the order. The order of the Commissioner shall become final and binding on all parties unless appealed to the district court as provided in Sections 301 through 326 of Title 75 of the Oklahoma Statutes within thirty (30) days after notice has been sent to the parties.
F. Whenever the Commissioner finds that an emergency exists requiring immediate action to protect the public health or welfare pursuant to the provisions of the Oklahoma Occupational Health and Safety Standards Act, the Commissioner may without notice or hearing issue an order stating the existence of such an emergency and requiring that such action be taken as he deems necessary to meet the emergency. Such order shall be effective immediately. Any person to whom such an order is directed shall comply with said order immediately but on application to the Commissioner shall be afforded a hearing within ten (10) days of receipt of said notice. On the basis of such hearing, the Commissioner shall continue such order in effect, revoke it, or modify it. Any person aggrieved by such order continued after the hearing provided for in this subsection may appeal to the district court of the county in which the place of employment is located within thirty (30) days. Such appeal when docketed shall have priority over all cases pending on said docket, except criminal cases. If compliance with said emergency order is not immediately taken, the Commissioner or his duly authorized employee may also request the district attorney of Oklahoma County, or the district attorney in any other district where service can be obtained, to file legal proceedings to enjoin the acts or practices contained in the emergency order to enforce immediate compliance with said order.
G. Except as otherwise expressly provided by law, any notice, order, or other instrument issued by or pursuant to authority of the Commissioner may be served on any person affected thereby personally, by publication, or by mailing a copy of the notice, order, or other instrument by registered mail directed to the person affected at his lastknown post office address as shown by the files or records of the Commissioner. Proof of service shall be made as in the case of service of a summons or by publication in a civil action or may be made by the affidavit of the person who did the mailing. Such proof of service shall be filed in the office of the Commissioner.
Every certificate or affidavit of service made and filed as in this section provided shall be prima facie evidence of the facts therein stated. A certified copy thereof shall have like force and effect.
H. The hearings authorized by this section may be conducted by the Commissioner or the Commissioner may designate hearing officers who shall have the power and authority to conduct such hearings in the name of the Commissioner at any time and place. Such hearings shall be conducted in conformity with and records made thereof as provided by the provisions of Sections 301 through 326 of Title 75 of the Oklahoma Statutes.
I. The employer to whom a health and safety order is directed shall notify the Department of his compliance therewith in a manner specified by the Department.
J. If an employer fails to comply with a health and safety order issued pursuant to this section, the Commissioner may grant an additional time for compliance therewith, modify, alter or dismiss the health and safety order or refer the matter to the Board.
Laws 1970, c. 287, § 10, operative July 1, 1970; Laws 1984, c. 147, § 4, operative July 1, 1984; Laws 1992, c. 305, § 4, emerg. eff. May 27, 1992.
§40412. Violations Penalties.
A. Any person failing to comply with any standard or interfering with, impeding or obstructing in any manner the administration of standards pursuant to the provisions of the Oklahoma Occupational Health and Safety Standards Act, upon conviction, shall be guilty of a misdemeanor.
B. Any person who violates any of the provisions of the Oklahoma Occupational Health and Safety Standards Act, upon conviction, shall be guilty of a misdemeanor and in addition thereto may be enjoined from continuing such violation. Each day upon which such violation occurs shall constitute a separate violation.
C. The Attorney General, on the request of the Commissioner, shall bring an action against any person violating any of the provisions of the Oklahoma Occupational Health and Safety Standards Act or violating any order or determination of the Commissioner promulgated pursuant to the Oklahoma Occupational Health and Safety Standards Act.
Laws 1970, c. 287, § 12, operative July 1, 1970; Laws 1984, c. 147, § 5, operative July 1, 1984; Laws 1992, c. 305, § 5, emerg. eff. May 27, 1992.
§40413. Public policy.
The following is declared to be the public policy of the state: Occupational accidents produce economic and social loss, impair productivity and retard the advancement of standards of living. Both humane and economic considerations recommend the establishment and implementation of effective injury control measures. A unified, continuing, professional effort is required. A dynamic program of health and safety education and training is the best known solution to the control of occupational accidents.
Laws 1970, c. 287, § 13, operative July 1, 1970.
§40414. Occupational safety and health consultation program for private employers.
A. The Commissioner shall not assert enforcement jurisdiction pursuant to Section 401 et seq. of this title over any occupational safety or health issue with respect to which a federal standard has been issued pursuant to Section (6) of Public Law 91596, also known as the WilliamsSteiger Occupational Safety and Health Act of 1970.
B. The Commissioner shall provide competent occupational safety and health consultation, education and training for private and public employers in coordination with the Oklahoma Department of Career and Technology Education and other available community resources.
C. Such consultation shall be provided on a priority basis to those private employers which, based on their certification, have occupational injury and illness rates exceeding the national average incidence rate for private employers of similar character.
D. No such consultation shall be provided except upon written request by the private employer.
E. Except when a condition of "imminent danger" exists, no reports, communication, or other information regarding safety and health hazards discovered by the Commissioner, pursuant to the administration of Section 401 et seq. of this title, or his representative in the workplaces of private employers, shall be reported to any enforcement authority whatsoever without the prior approval of the employer.
F. The Commissioner may, in providing services to private employers upon request, refer private employers for participation in other safety and health consultation, education and training programs including but not limited to the programs authorized by Section 7(C)1 of Public Law 91596.
G. The Commissioner may, upon request, refer qualifying private employers to programs operated by the U.S. Department of Labor for recognition or for exemption from inspection by the U.S. Department of Labor Occupational Safety and Health Administration.
H. The Commissioner shall certify successful participation in the occupational safety and health consultation, education and training program pursuant to the provisions of Section 924.2 of Title 36 of the Oklahoma Statutes.
I. The Commissioner may promulgate such rules and regulations as may be necessary to implement the provisions of this section.
J. As used in this section:
1. "Private employer" means a person engaged in a business affecting commerce who has employees, but does not include the United States or any state or political subdivision of a state; and
2. "Imminent danger" means any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death, or serious physical harm immediately.
Added by Laws 1970, c. 287, § 14, operative July 1, 1970. Amended by Laws 1986, c. 222, § 1, eff. Nov. 1, 1986; Laws 1988, c. 317, § 3, eff. Nov. 1, 1988; Laws 1992, c. 305, § 6, emerg. eff. May 27, 1992; Laws 2001, c. 33, § 35, eff. July 1, 2001.
§40-415.1. Repealed by Laws 2005, 1st Ex.Sess., c. 1., § 34, eff. July 1, 2005.
§40-415.2. Repealed by Laws 2005, 1st Ex.Sess., c. 1., § 34, eff. July 1, 2005.
§40416. Establishment of staff Duties.
The Commissioner shall establish within the Department an experienced and competent staff to discharge the duties and responsibilities provided in Sections 13 through 17 of this act.
Laws 1970, c. 287, § 16, operative July 1, 1970.
§40417. Reports by employers - Summary.
(1) To assure the availability of accurate, timely statistical data concerning occupational health and safety in Oklahoma, all employers as defined in Section 402 of this title shall submit reports, on a form and in a manner prescribed by the Commissioner of Labor. Reports shall include only those injuries arising from employment within the State of Oklahoma.
(2) The Department may exempt from this requirement those classes of employers for whose operations adequate records of safety experience are already available or the Department may exempt any employer from this requirement when, in the judgment of the Commissioner, the submission of annual reports by such employer is not necessary to carry out the purposes of this act and would be an undue burden upon such employer because of size, the nature of its operation or other special circumstances.
(3) The Department shall publish each year a detailed summary of the statistical data received from employers. A copy of such summary shall be available on request to each reporting establishment required to file reports of disabling work injuries and shall be made available to anyone having a legitimate interest in the subject matter of the report.
(4) Upon publication of the annual summary, the Commissioner of Labor shall provide to the CompSource Oklahoma President and Chief Executive Officer, upon request, the reports of each employer subject to the provisions of this section, and any derivation, tables or analysis generated by the Department of Labor in the preparation of such summary.
Added by Laws 1970, c. 287, § 17, operative July 1, 1970. Amended by Laws 1985, c. 348, § 5, emerg. eff. July 31, 1985; Laws 1988, c. 317, § 4, eff. Nov. 1, 1988; Laws 1992, c. 305, § 7, emerg. eff. May 27, 1992; Laws 2002, c. 50, § 2, eff. Nov. 1, 2002.
§40417.1. Special Occupational Health and Safety.
There is hereby created in the State Treasury a fund for the Department of Labor to be designated the "Special Occupational Health and Safety Fund". The fund shall be subject to legislative appropriation and shall consist of monies collected pursuant to Section 418 of Title 40 of the Oklahoma Statutes.
Added by Laws 1986, c. 223, § 24, operative July 1, 1986.
§40418. Payments to Commission Refunds Collection of payments Disposition of funds.
(1) Each insurance carrier writing workers' compensation insurance in this state, the State Insurance Fund and each selfinsured employer authorized to make workers' compensation payments directly to employees shall pay to the Oklahoma Tax Commission up to a sum equal to threefourths of one percent (3/4 of 1%) of the total workers' compensation losses, excluding medical payments and temporary total disability compensation, based on the records of the Workers' Compensation Court, paid out or payable during each quarteryear period of the calendar year, said percentage to be fixed by the Commissioner and based upon his certification that the proceeds thereof are reasonable and necessary to accomplish the objectives of Section 401 et seq. of this title. Such payments to the Oklahoma Tax Commission shall be made not later than the fifteenth day of the month following the close of the quarteryear in which compensation is paid or becomes payable. Payments made, under the provisions of this section, shall be considered losses for the purpose of computing workers' compensation rates.
(2) The refund provisions of Title 68 of the Oklahoma Statutes, Sections 227 through 229, shall be applicable to any payments made under the provisions of this act.
(3) In making and entering awards for compensation, the Workers' Compensation Court shall determine and fix the amounts that shall be paid to the Oklahoma Tax Commission under the provisions of this section. The total amount so determined and fixed shall have the same force and effect as an award of the Workers' Compensation Court for compensation and all provisions relating to the collection of awards of said court shall apply to such judgments.
(4) It shall be the duty of the Oklahoma Tax Commission to collect the payments provided for herein, and said Commission is hereby given authority to bring an action for the recovery of any delinquent and unpaid payment or payments. In the alternative, the Oklahoma Tax Commission may enforce payments by proceeding in accordance with the provisions of Section 42 of Title 85 of the Oklahoma Statutes.
(5) The Oklahoma Tax Commission shall, monthly, as the same are collected, pay to the State Treasurer of this state, to the credit of the Special Occupational Health and Safety Fund, all monies collected under the provisions of this section. Monies shall be paid out of said Fund exclusively for the operation and administration of Section 401 et seq. of this title and for other necessary expenses of the Department of Labor pursuant to appropriations by the Oklahoma Legislature.
(6) The Commissioner shall determine the needs of the program, considering statistical data on disabling work injuries, depth and scope of the program as evidenced by the needs and demands of employers and the present, planned and anticipated budgetary needs of the program, and submit same to the Legislature.
Amended by Laws 1985, c. 181, § 222, operative July 1, 1985; Laws 1986, c. 223, § 25, operative July 1, 1986.
§40-418.2. Worker Safety Policy Council.
A. There is hereby created the Worker Safety Policy Council to study and formulate reforms for worker safety that could result in lower work-related injuries and result in lower workers' compensation costs for business.
B. The Worker Safety Policy Council shall be comprised of eighteen (18) members as follows:
1. The Commissioner of Labor or his or her designee, who shall act as chairman for the Council;
2. The Administrator of the Workers' Compensation Court or his or her designee;
3. The CompSource Oklahoma President and Chief Executive Officer or his or her designee;
4. The Insurance Commissioner or his or her designee;
5. The Director of the Department of Commerce or his or her designee;
6. A representative from the Oklahoma Safety Council who shall be appointed by the Commissioner of Labor and shall serve at the pleasure of the Commissioner;
7. A representative from an American society or organization of safety engineers who shall be appointed by the Commissioner of Labor and shall serve at the pleasure of the Commissioner;
8. A representative from an American industrial hygiene association who shall be appointed by the Commissioner of Labor and shall serve at the pleasure of the Commissioner;
9. A representative from an Oklahoma labor union who shall be appointed by the Commissioner of Labor and shall serve at the pleasure of the Commissioner;
10. A representative from the Oklahoma State Chamber of Commerce and Industry who shall be appointed by the Commissioner of Labor and shall serve at the pleasure of the Commissioner;
11. A representative from an organization of the private sector who shall be appointed by the Commissioner of Labor and shall serve at the pleasure of the Commissioner;
12. A representative from an organization of public employees who shall be appointed by the Commissioner of Labor and shall serve at the pleasure of the Commissioner;
13. A representative from the Oklahoma Municipal League who shall be appointed by the Commissioner of Labor and shall serve at the pleasure of the Commissioner;
14. A representative of the public schools who shall be appointed by the Commissioner of Labor and shall serve at the pleasure of the Commissioner; and
15. Four members of the Legislature of which two shall be members of the Senate who shall be appointed by the President Pro Tempore of the Senate and two shall be members of the House of Representatives who shall be appointed by the Speaker of the House of Representatives.
C. Vacancies on the Council shall be filled by the Commissioner of Labor, except that legislative vacancies shall be filled in the same manner as the original appointment. A simple majority of the Council shall constitute a quorum.
D. The Department of Labor shall provide such office supplies and personnel as may be necessary to assist the Council.
E. Members of the Council shall receive no compensation for serving on the Council, but shall be reimbursed by the Department of Labor for their necessary travel expenses incurred in the performance of their duties in accordance with the State Travel Reimbursement Act.
F. The Council shall hold at least quarterly meetings each calendar year at a place and time to be fixed by the Council. The Council shall make annual recommendations for legislative and policy changes to public and private employers to reduce worker injuries and the resulting costs associated with those injuries. Commencing September 1, 1994, and annually thereafter, the Council shall submit a report of its recommendations to the Governor, the President Pro Tempore of the Senate and the Speaker of the House of Representatives.
Added by Laws 1993, c. 349, § 21, eff. Sept. 1, 1993. Amended by Laws 1994, c. 163, § 2, emerg. eff. May 6, 1994; Laws 1997, c. 391, § 11, eff. July 1, 1997; Laws 2002, c. 50, § 3, eff. Nov. 1, 2002.
§40419. Penalty.
Any employer or insurance company willfully failing to comply with any of the provisions of Sections 17 and 18 is guilty of a misdemeanor.
Laws 1970, c. 287, § 19, operative July 1, 1970.
§40424. Qualifications for personnel of Department of Labor.
The provisions as to qualifications of persons in positions or jobs created or provided for under provisions of Sections 401 through 423 of Title 40 of the Oklahoma Statutes, the Oklahoma Occupational Health and Safety Standards Act of 1970, shall not apply to officers or employees of the Department of Labor, it being intended that their qualifications for such positions or jobs be determined by the Commissioner of Labor.
Laws 1971, c. 356, § 1, emerg. eff. June 26, 1971.
§40-425. Hazardous industries.
A. The Commissioner of Labor shall for each calendar year approve a list of the most hazardous industries in the state by Standard Industrial Classification Code based on the most current data available from the Federal Occupational Health and Safety Administration. In computing level of hazard the Commissioner of Labor shall include the following factors:
1. Total injuries;
2. Fatalities;
3. Number of fatal incidents;
4. High experience modifiers; and
5. Other factors as determined by the Commissioner to indicate a high hazard industry.
B. The Commissioner of Labor shall approve the annual list within forty-five (45) days after receipt of national and state incident rate of nonfatal occupational injuries by industry data from the United States Department of Labor, Bureau of Labor Statistics. The list shall be transmitted to the Insurance Commissioner for distribution to insurance companies providing workers' compensation insurance or an equivalent product in this state and to the State Insurance Fund.
Added by Laws 1994, 2nd Ex. Sess., c. 1, § 12, emerg. eff. Nov. 4, 1994. Amended by Laws 1997, c. 391, § 12, eff. July 1, 1997.
§40-450. Short title.
Sections 265 through 270 of this act shall be known and may be cited as the "Oklahoma Asbestos Control Act".
Added by Laws 1993, c. 145, § 264, eff. July 1, 1993.
§40-451. Definitions.
As used in the Oklahoma Asbestos Control Act:
1. "Friable asbestos material" means any material that contains asbestos of one percent (1%) or more that can be crumbled, pulverized or reduced to powder by hand pressure;
2. "Friable asbestos material abatement" means the removal, encapsulation or enclosure of friable asbestos containing material;
3. "Friable asbestos material encapsulation" means the application of a bonding agent called a sealant, which penetrates and hardens the asbestos material or covers the surface of the material with a protective coating, thus preventing fiber release from the asbestos material;
4. "Friable asbestos material removal" means the actual physical removal of any friable asbestos containing material from a facility, when the asbestos is either attached to or detached from any device or structure;
5. "Contractor" means any public or private entity that engages in friable asbestos containing material abatement in any facility in this state except private residences or apartment houses of less than six family units;
6. "Commissioner" means the Commissioner of Labor.
Added by Laws 1982, c. 101, § 1, eff. Oct. 1, 1982. Amended by Laws 1985, c. 270, § 1; Laws 1993, c. 145, § 265, eff. July 1, 1993.
§40-452. License required - Fee - Exemptions.
A. No contractor shall abate any friable material containing asbestos without having first obtained a license to do so from the Commissioner of Labor. The Commissioner shall issue an asbestos abatement license to a qualified contractor upon proper application, as determined by the Commissioner. The annual fee for such license shall be Five Hundred Dollars ($500.00). A nonrefundable initial application fee of One Thousand Dollars ($1,000.00) shall be charged. The Commissioner may deny a license to applicants whose past abatement performance for abatement of friable asbestos does not comply with federal and other states' requirements. A minimum waiting period of one hundred twenty (120) days will be required before issuance of a license to permit the Commissioner to perform a work performance investigation of the applicant.
The annual fee for examining and certifying workers employed by a contractor for asbestos abatement shall be Twenty-five Dollars ($25.00). Uncertified workers shall not be used on any asbestos abatement projects.
B. The state and political subdivisions thereof, counties and political subdivisions thereof and municipalities and political subdivisions thereof, and their supervisors and employees, shall be exempt from any certification fees required by this section when such entities act as a contractor. Any contractor not performing abatement work which falls under the jurisdiction of the Commissioner during the period of the issued license shall be considered a new applicant for purposes of licensing and training.
C. A fee of Six Hundred Dollars ($600.00) shall be paid by contractors to the Department of Labor, to be deposited in the General Revenue Fund, for each separate containment area of any asbestos abatement project. There shall be a minimum of three inspections of each containment area. For projects which are not a part of a definite containment area, or are performed with multiple glovebags or miniature containments, a fee of Two Hundred Dollars ($200.00), plus Five Dollars ($5.00) per such glovebag or miniature containment, shall be made.
Asbestos abatement projects performed on properties owned by the state or any political subdivision thereof shall be exempt from this fee.
D. Any asbestos abatement contractor transporting asbestos-containing material shall be required to provide to the Commissioner a Certificate of Insurance by a carrier licensed to do business in the State of Oklahoma demonstrating a minimum of One Million Dollars ($1,000,000.00) of environmental impairment insurance.
E. No state agency or political subdivision thereof, county or political subdivision thereof, or municipalities or political subdivisions thereof shall solicit or receive any estimate or bid for abatement of asbestos from any person or party who is not a licensed asbestos abatement contractor.
Added by Laws 1982, c. 101, § 2, eff. Oct. 1, 1982. Amended by Laws 1985, c. 270, § 2; Laws 1987, c. 208, § 82, operative Nov. 1, 1987; Laws 1987, c. 236, § 92, operative Nov. 1, 1987; Laws 1988, c. 250, § 3, emerg. eff. June 27, 1988; Laws 1991, c. 215, § 16, eff. July 1, 1991; Laws 1993, c. 145, § 267, eff. July 1, 1993.
§40-453. Powers and duties of Commissioner.
A. The Commissioner of Labor shall have the power and duty to:
1. Develop and promulgate rules for the abatement of friable asbestos materials which shall be consistent with general industry standards;
2. Instruct and examine contractors, employees and supervisors on the safe abatement of friable asbestos materials;
3. Hire sufficient personnel to carry out the provisions of this act consistent with funds allocated and full-time-equivalent employees authorized;
4. Inspect all asbestos abatement projects, to issue, modify and revoke orders; to issue cease and desist orders; and to require mandamus and seek injunctive relief for enforcement of orders;
5. Inspect public buildings for the presence of friable asbestos materials;
6. Collect samples to determine the presence and condition of friable asbestos materials in public buildings;
7. Recommend appropriate abatement measures for friable asbestos materials in public buildings;
8. Make and enter into all contracts and agreements necessary or incidental to the performance of the Department's duties and the execution of its powers under the Oklahoma Asbestos Control Act including, but not limited to, contracts with the United States, other states, agencies, and political subdivisions of this state;
9. Accept grants from the United States government, its agencies and instrumentalities, and any other source. To these ends, the Department shall have the power to comply with such conditions and execute such agreements as may be necessary and desirable;
10. Supervise, administer, and enforce the provisions of the Oklahoma Asbestos Control Act rules promulgated thereunder;
11. Hold hearings;
12. Institute legal proceedings, including suits for injunctions for the enforcement of his orders, rules, and for the enforcement of penalties;
13. Investigate any violations of the Oklahoma Asbestos Control Act; and
14. Exercise all incidental powers which are necessary to carry out the provisions of the Oklahoma Asbestos Control Act.
B. The violations of any rule shall be grounds for the Commissioner to evoke any penalties set forth in Section 456 of this title.
Added by Laws 1982, c. 101, § 3, eff. Oct. 1, 1982. Amended by Laws 1985, c. 270, § 3; Laws 1993, c. 145, § 266, eff. July 1, 1993.
§40-454. Suspension, revocation or refusal to issue license - Hearing - Appeal.
If the Commissioner finds that a contractor has violated any of the provisions of the Oklahoma Asbestos Control Act or any rule promulgated pursuant to the Oklahoma Asbestos Control Act, the Commissioner may suspend, revoke or refuse to issue the license of the contractor after a hearing held for such purpose. Such hearing shall be held within thirty (30) days after written notice has been sent to the contractor by certified mail. If, after such hearing, the Commissioner finds cause to suspend, revoke or refuse to issue a license, the contractor shall be given written notice of the decision of the Commissioner and the basis therefor. The decision shall become final at the end of thirty (30) days from the date of such notice, unless appealed to the district court. All appeals from the Commissioner's order shall be taken in the manner prescribed by law.
Added by Laws 1982, c. 101, § 4, eff. Oct. 1, 1982. Amended by Laws 1993, c. 145, § 270, eff. July 1, 1993.
§40-455. Inspections and investigations.
The Commissioner of Labor or an authorized representative shall have the power and authority to enter at reasonable times upon any property for the purpose of inspecting and investigating contractors relating to the abatement of any friable material containing asbestos pursuant to the Oklahoma Asbestos Control Act.
Added by Laws 1982, c. 101, § 5, eff. Oct. 1, 1982. Amended by Laws 1985, c. 270, § 4; Laws 1993, c. 145, § 268, eff. July 1, 1993.
§40-456. Violations - Penalties - Injunction.
A. In addition to any administrative or civil penalty, any person who violates any of the provisions of the Oklahoma Asbestos Control Act or who violates any rule or order promulgated pursuant thereto shall be guilty of a misdemeanor and may be enjoined from continuing such action. Upon conviction thereof, said person shall be punished by imprisonment in the county jail for not more than six (6) months and by a fine of not less than One Hundred Dollars ($100.00). Each day's violations shall constitute a separate violation.
B. The Attorney General shall, upon request of the Commissioner, bring an action for injunction against any person violating any provision of the Oklahoma Asbestos Control Act or violating any order or determination of the Commissioner. In any action for injunction, any finding of the Commissioner, after notice, shall be prima facie evidence of the facts found therein.
C. A district attorney, upon request of the Commissioner, shall prosecute any violation of the Oklahoma Asbestos Control Act.
Added by Laws 1982, c. 101, § 6, eff. Oct. 1, 1982. Amended by Laws 1993, c. 145, § 269, eff. July 1, 1993.
§40457. Commissioner of Health Powers and duties.
The Commissioner of Health shall have the following powers and duties:
1. To inspect public buildings for the presence of friable asbestos materials;
2. To collect and analyze samples to determine the presence and condition of friable asbestos materials;
3. To determine the extent of public health hazard posed by the presence of friable asbestos materials;
4. To recommend appropriate abatement measures for friable asbestos materials;
5. To inspect private property upon request of the owner for presence of friable asbestos materials; and
6. To perform such other duties as the Commissioner of Health may determine are essential to the protection of public health from hazards posed by friable asbestos materials.
Added by Laws 1985, c. 270, § 5.
§40460. Rules and regulations.
The Commissioner of Labor shall promulgate rules and regulations for the safe installation, repair, maintenance, use, operation and inspection of all amusement rides necessary for the protection of the general public using amusement rides.
§40-460.1. Rules for definition of "alteration".
A. Pursuant to the authority granted to the Commissioner of Labor under Section 460 of Title 40 of the Oklahoma Statutes to promulgate rules for the safe installation, repair, maintenance, use, operation, and inspection of all amusement rides necessary for the protection of the general public using amusement rides, the Commissioner of Labor shall promulgate rules regarding the definition of alteration.
B. Rules promulgated pursuant to subsection A of this section shall include the following language:
"Alteration" means any change in either the structural or operational characteristics of the amusement ride which will alter its performance from that specified in the design criteria of the manufacturer.
Added by Laws 2000, c. 295, § 1, eff. Nov. 1, 2000.
§40-460.2. Rules regarding amusement ride maintenance, inspection, and repair records.
A. Pursuant to the authority granted to the Commissioner of Labor under Section 460 of Title 40 of the Oklahoma Statutes to promulgate rules for the safe installation, repair, maintenance, use, operation, and inspection of all amusement rides necessary for the protection of the general public using amusement rides, the Commissioner of Labor shall promulgate rules regarding amusement ride maintenance, inspection, and repair records.
B. Rules promulgated pursuant to subsection A of this section shall include the following language:
The owner of an amusement ride shall maintain up-to-date maintenance, inspection, and repair records between inspection periods for each amusement ride in the manner provided by the Commissioner of Labor. The records shall contain a copy of all inspection reports commencing with the last annual inspection, a description of all maintenance performed, and a description of any mechanical or structural failures or operational breakdowns and the types of actions taken to rectify these conditions.
Added by Laws 2000, c. 295, § 2, eff. Nov. 1, 2000.
§40-460.3. Rules regarding use of signage - Definition of "sign".
A. Pursuant to the authority granted to the Commissioner of Labor under Section 460 of Title 40 of the Oklahoma Statutes to promulgate rules for the safe installation, repair, maintenance, use, operation, and inspection of all amusement rides necessary for the protection of the general public using amusement rides, the Commissioner of Labor shall promulgate rules regarding the use of signage concerning amusement rides.
B. Rules promulgated pursuant to subsection A of this section shall include the following language:
1. An amusement ride owner shall display signs indicating the applicable safety responsibilities of riders as set forth by the Commissioner of Labor and the location of stations to report injuries. The signs must be located at:
a. each station for reporting an injury,
b. each first aid station, and
c. at each premises entrance and exit;
2. An amusement ride owner shall post a sign at each amusement ride that includes:
a. operational instruction, if any,
b. safety guidelines for rider, if any,
c. restrictions of the use of the amusement ride, if any,
d. behavior or activities that are prohibited, if any, and
e. a legend providing that "State law requires riders to obey all warnings and directions for this ride and behave in a manner that will not cause or contribute to injuring themselves or others. Failure to comply is punishable by fine and imprisonment.";
3. Any sign required by this rule must be prominently displayed at a conspicuous location, clearly visible to the public and bold and legible in design; and
4. As used in this rule, "sign" means any symbol or language reasonably calculated to communicate information to a rider or the parent or guardian of a rider, including placards, prerecorded messages, live public address, stickers, pictures, video, verbal information, and visual signals.
Added by Laws 2000, c. 295, § 3, eff. Nov. 1, 2000.
§40-460.4. Rules regarding use of amusement rides by riders - Definition of "rider".
A. Pursuant to the authority granted to the Commissioner of Labor under Section 460 of Title 40 of the Oklahoma Statutes to promulgate rules for the safe installation, repair, maintenance, use, operation, and inspection of all amusement rides necessary for the protection of the general public using amusement rides, the Commissioner of Labor shall promulgate rules regarding the use of amusement rides by riders.
B. Rules promulgated pursuant to subsection A of this section shall include the following language:
1. A rider shall:
a. obey the reasonable safety rules posted in accordance with law and oral instructions for an amusement ride issued by the owner or the employee of the owner, unless:
(1) the safety rules are contrary to law or rules, or
(2) the oral instructions are contrary to law or rules or the safety rules, and
b. refrain from acting in any manner that may cause or contribute to injuring the rider or others, including:
(1) exceeding the limits of ability of the rider,
(2) interfering with safe operation of the amusement ride,
(3) not engaging any safety devices that are provided,
(4) disconnecting or disabling a safety device except at the express instruction of the ride operator,
(5) altering or enhancing the intended speed, course, or direction of an amusement ride,
(6) using the controls of an amusement ride designed solely to be operated by the ride operator,
(7) extending arms and legs beyond the carrier or seating area except at the express direction of the ride operator,
(8) throwing, dropping, or expelling an object from or toward an amusement ride except as permitted by the ride operator,
(9) getting on or off an amusement ride except at the designated time and area, if any, at the direction of the ride operator or in an emergency, and
(10) not reasonably controlling the speed or direction of the person of the rider or an amusement ride that requires the rider to control or direct the person of the rider or a device;
2. A rider may not get on or attempt to get on an amusement ride unless the rider or the parent or guardian of the rider reasonably determines that the rider:
a. has sufficient knowledge to use, get on, and get off the amusement ride safely without instruction or has requested and received before getting on the ride sufficient information to get on, use, and get off safely,
b. has located, reviewed, and understood any signs in the vicinity of the ride and has satisfied any posted height, medical, or other restrictions,
c. knows the range and limits of the ability of the rider and knows the requirements of the amusement ride will not exceed those limits,
d. is not under the influence of alcohol or any drug that affects the ability of the rider to safely use the amusement ride or obey the posted rules or oral instructions, and
e. is authorized by the amusement ride owner or the authorized employee of the amusement ride owner to get on the amusement ride; and
3. As used in this rule, "rider" means any person who is:
a. waiting in the immediate vicinity to get on an amusement ride,
b. getting on an amusement ride,
c. using an amusement ride,
d. getting off an amusement ride, or
e. leaving an amusement ride and still in its immediate vicinity.
Added by Laws 2000, c. 295, § 4, eff. Nov. 1, 2000.
§40-461. Definitions.
As used in Sections 1 through 10 of this act:
1. "Amusement ride" means a device or combination of devices or elements that carry, convey, or direct a person or persons over or through a fixed or restricted course or within a defined area for the primary purpose of amusement or entertainment. Amusement ride does not include the operation of articles of husbandry incidental to any agricultural operation or the operation of amusement devices of a permanent nature which are subject to building regulations issued by cities or counties and existing applicable safety orders;
2. "Operator" or "owner" means a person who owns or controls or has the duty to control the operation of an amusement ride and includes the state and every state agency, and each county, city and all private or public corporations and political subdivisions;
3. "Certificate of inspection" means a certificate issued by the Commissioner of Labor which indicates that an inspection of the ride has been performed pursuant to rules and regulations adopted by the Department of Labor; and
4. "Permanent amusement park ride" means an amusement ride which is stationary or cannot be easily moved and which is located on the same premises on which it is operated for no less than ninety (90) days.
Added by Laws 1982, c. 145, § 2. Amended by Laws 2003, c. 102, § 1, eff. Nov. 1, 2003.
§40462. Certificate of inspection Inspections.
A. No person shall operate an amusement ride without a certificate of inspection. On or before March 1 of each year, an operator or owner shall apply for a certificate of inspection on a form furnished by the Commissioner of Labor.
B. All amusement rides shall be inspected before they are originally put into operation for the use of the public, and thereafter, at least once each calendar year, unless authorized to operate under a temporary certificate. Amusement rides must also be inspected each time they are disassembled and reassembled.
C. The owner or operator may make application to the Commissioner for less frequent inspections than are required under subsection B of this section. The Commissioner, upon investigation and/or hearing of the matter, may grant a waiver, provided equal public safety is maintained. Such waiver shall provide specific requirements for inspection in lieu of the requirements of subsection B of this section. The Commissioner shall promulgate rules for the determination of a waiver provided such rules place an affirmative responsibility on the owner/operator for the preservation of public safety.
D. The Commissioner of Labor may cause the inspection herein provided for to be made by his safety inspectors or by any qualified amusement ride inspector employed by an insurance company.
E. If, after inspection, an amusement ride is found to comply with the rules and regulations of the Commissioner of Labor, the Commissioner of Labor shall issue a certificate of inspection which shall authorize the operator or owner to operate the rides.
Added by Laws 1982, c. 145, § 3, eff. Oct. 1, 1982. Amended by Laws 1994, c. 272, § 6, operative July 1, 1994.
§40463. Fees Certification of rides Certificate of insurance.
A. No fees shall be charged to public agencies. The fees provided for in this subsection shall not apply to amusement parks owned and operated by nonprofit corporations.
1. The annual ride registration fee shall be: $25.00
2. The inspection fee shall be:
a. Kiddie Rides $25.00
b. Major Rides $50.00
c. Other Rides per hour $100.00
B. The Commissioner of Labor shall not issue an original certificate of inspection for an amusement ride until he receives certification in writing that such amusement rides meet the requirements established by the Commissioner of Labor for amusement rides. The Commissioner of Labor shall designate by rule and regulation pursuant to Section 460 of this title the qualifications of the inspectors making the inspections required by this section.
C. Any permanent amusement park ride owner or operator shall file a copy of a certificate of insurance with the Commissioner of Labor on or before February 1 of each year. Such certificate of insurance shall be in such form as to reflect the safety inspection requirements for obtaining such insurance and the date of the last inspection. The amount of the premium and the amount of coverage shall not be required to be disclosed in the certificate.
The Commissioner may accept such certificate and insurance inspection as evidence sufficient to issue a certificate of inspection for the permanent amusement park ride.
D. The Governing Board of the State Fair of Oklahoma, the Tulsa State Fair, and the Muskogee State Fair shall file a copy of a certificate of insurance with the Commissioner of Labor before the rides are put into operation at each location for the use of the public. Such certificate shall be in such form as to reflect the safety inspection requirements for obtaining such insurance and the date of the inspection.
The Commissioner may accept such insurance inspection as evidence sufficient to issue a certificate of inspection for the rides.
Added by Laws 1982, c. 145, § 4, eff. Oct. 1, 1982. Amended by Laws 1983, c. 101, § 1, emerg. eff. May 9, 1983; Laws 1991, c. 122, § 3, eff. July 1, 1991; Laws 1991, c. 215, § 15, eff. July 1, 1991; Laws 1993, c. 270, § 47, eff. Sept. 1, 1993.
§40464. Notice of erection of ride or additions or alterations.
Before a new amusement ride is erected, or whenever any additions or alterations are made which change the structure, mechanism, classification or capacity of any amusement ride, the operator or owner shall file with the Commissioner of Labor a notice of his intention and any plans or diagrams requested by the Commissioner of Labor.
Added by Laws 1982, c. 145, § 5.
§40465. Temporary cessation of ride Orders Enforcement.
A. The Commissioner of Labor may issue a written order for the temporary cessation of operation of an amusement ride if it has been determined after inspection to be hazardous or unsafe. Operations shall not resume until such conditions are corrected to the satisfaction of the Commissioner of Labor. The Commissioner of Labor or his authorized inspector may inspect any amusement ride without notice.
B. In addition to other powers confirmed by this act, the Commissioner or his authorized representative shall have power to order any person, firm, corporation, corporate officers, trustees or any managing official of any municipal corporation, state agency or political subdivision to cease violating any provision of this act, or rule or regulations issued pursuant to this act. A certified copy of such order shall be mailed to the person or entity so violating the provisions of this act.
C. Any order issued by the Commissioner or his authorized representative may be enforced in the district court in an action for an injunction or writ of mandamus upon the petition of the district attorney or Attorney General. Provided further, an injunction, without bond, may be granted by the district court to the Commissioner, for the purpose of enforcing this act.
Added by Laws 1982, c. 145, § 6.
§40466. Modification of rules and regulations Grounds.
The Commissioner of Labor may modify the application of rules or regulations to an operator who demonstrates a hardship resulting from such application if the public safety will remain secure. Any owner or operator may make a written request to the Commissioner of Labor specifying the hardships which are his grounds for requesting such modification. Any authorization by the Commissioner of Labor shall be in writing and shall describe the conditions under which the modifications shall be permitted. A permanent record of all modifications shall be kept in the Department of Labor for public inspection.
Added by Laws 1982, c. 145, § 7.
§40467. Liability insurance.
No person shall operate an amusement ride unless at the time there exists a policy of insurance in an amount of not less than One Million Dollars ($1,000,000.00) insuring the owner or operator against liability for injury suffered by persons riding the amusement ride.
Added by Laws 1982, c. 145, § 8, eff. Oct. 1, 1982. Amended by Laws 2000, c. 295, § 5, eff. Nov. 1, 2000.
§40468. Political subdivisions Regulation of rides Inspections.
A. Nothing contained in this act shall prevent cities and counties from regulating amusement rides nor prevent them from enacting ordinances in addition to the rules and regulations promulgated by the Commissioner of Labor which may be more restrictive than thisact with respect to amusement rides.
B. If a political subdivision presents satisfactory evidence to the Commissioner of Labor that it can perform the inspections required by this act, the Commissioner of Labor may delegate his power of inspection.
C. The delegation of power is subject to an agreement entered into by the Commissioner of Labor and the agency, political subdivision or municipality.
D. The Commissioner of Labor may revoke the agreement or retain the right to monitor the inspection.
Added by Laws 1982, c. 145, § 9.
§40469. Violations Penalties.
Any violation of the provisions of this act shall be a misdemeanor. Conviction thereof shall be punished by a fine not exceeding One Thousand Dollars ($1,000.00) or not more than one (1) year in the county jail, or both such fine and imprisonment. Each day of violation shall constitute a separate offense.
Added by Laws 1982, c. 145, § 10.
§40481. Establishment Purpose Administration Public works jobs included in program Criteria for work experience assignments Public projects contracted by private sector contractor which may be included Eligible participants Voluntariness of participation.
A. There shall be established a Jobs Recovery Program in accordance with this act. The purpose of the Jobs Recovery Program shall be to provide public works jobs and training for individuals not otherwise able to obtain employment, provided they meet the requirements specified in subsection F of this section, in order to assist them in obtaining regular public or private employment.
B. The Oklahoma Employment Security Commission shall administer this program subject to the requirements of this act and availability of funds.
C. Public works jobs which shall be a part of this program shall include, but not be limited to, the following:
1. Building, rebuilding or repairing roadbeds, bridges and sidewalks;
2. Building, rebuilding, remodeling or repairing public schools and public buildings;
3. Maintaining and improving state and municipal parks, historical sites and cemeteries; and
4. Building, rebuilding, remodeling or repairing jails, juvenile facilities and prisons.
D. To the extent possible, the prior training, experience, skills and abilities of a participant of this program shall be utilized in making appropriate work experience assignments. The Jobs Recovery Program established under this act shall provide:
1. Appropriate standards for health, safety and other conditions applicable to the performance of work;
2. That the program does not result in displacement of persons currently employed, or the filling of established unfilled position vacancies;
3. Reasonable conditions of work, taking into account the geographic region, the residence of the participants and the proficiency of the participants;
4. That participants will not be required, without their consent, to travel an unreasonable distance from their homes or remain away from their homes overnight; and
5. Appropriate workers' compensation protection to each participant performing work under this program.
E. The Jobs Recovery Program may include any public project which is contracted by a private sector contractor, subject to the following requirements:
1. A contractor who commits to utilize on a particular project a labor force of which at least onehalf is comprised of participants of this program shall be preferred in the awarding of public contracts when his bid and the bid of a nonparticipating contractor are equal in all respects and are the low bids. To the extent permitted by law public funds from this program will compensate the contractor for at least onehalf of the labor costs for participants in the Jobs Recovery Program for a period not exceeding six (6) months for any project;
2. Contractors participating in this program shall meet the requirements as stipulated in subsection D of this section; and
3. Contractors participating in this program shall give priority consideration to qualified participants of this program when established position vacancies occur.
F. Eligible participants for the Jobs Recovery Program shall be those unemployed persons who have exhausted all state and federal unemployment benefits, as certified by the Oklahoma Employment Security Commission, and/or those economically disadvantaged.
G. Notwithstanding any other provision of law, participation in the Jobs Recovery Program under this act shall be voluntary only, and in no event shall any person be subject to legal sanctions for nonparticipation.
Added by Laws 1988, c. 219, § 1, emerg. eff. June 21, 1988.
§40482. Federal and private sector funds to be sought.
A. The Oklahoma Employment Security Commission shall seek any federal funds available for the implementation of the Jobs Recovery Program, including, but not limited to, funds available from grants or work and training programs.
B. The Oklahoma Employment Security Commission shall seek any private sector funds available for the implementation of the Jobs Recovery Program, including, but not limited to, funds available from donations or grants.
Added by Laws 1988, c. 219, § 2, emerg. eff. June 21, 1988.
§40483. Administration of Job Training Partnership Act and State Council on Vocational Education Transfer to Employment Security Commission.
The duties and responsibilities currently performed by the Oklahoma Department of Commerce with regards to administration of the Job Training Partnership Act of 1982, 29 U.S.C., Section 1501 et seq., and all related property, records and personnel, are hereby transferred to the Oklahoma Employment Security Commission. Employees transferred to the Oklahoma Employment Security Commission shall be classified and subject to the provisions of the Merit System of Personnel Administration as provided for in the Oklahoma Personnel Act, Section 840.1 et seq. of Title 74 of the Oklahoma Statutes. Said employees shall retain membership in the Health Insurance Plan, Dental Insurance Plan and Life Insurance Plan created pursuant to Section 1301 et seq. of Title 74 of the Oklahoma Statutes, or Health Maintenance Organization (HMO) Plans approved by the State and Education Employees Group Insurance Board.
All administrative responsibility for the State Council on Vocational Education transferred to the Oklahoma Employment Security Commission on July 1, 1989, is hereby transferred back to the State Council on Vocational Education. Employees associated with the State Council on Vocational Education shall retain membership in the Health Insurance Plan, Dental Insurance Plan and Life Insurance Plan created pursuant to Section 1301 et seq. of Title 74 of the Oklahoma Statutes, or Health Maintenance Organization (HMO) Plans approved by the State and Education Employees Group Insurance Board.
Added by Laws 1989, c. 313, § 11, operative July 1, 1989. Amended by Laws 1992, c. 19, § 1, emerg. eff. March 30, 1992.
§40-500. Nonsmoking as condition of employment.
It shall be unlawful for an employer to:
1. Discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual is a nonsmoker or smokes or uses tobacco products during nonworking hours; or
2. Require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products during nonworking hours.
Added by Laws 1991, c. 172, § 11, emerg. eff. May 8, 1991; Amended by Laws 1991, c. 295, § 3, emerg. eff. May 29, 1991.
§40-501. Construction of act - Conditions relating to smoking.
The provisions of Sections 11 through 14 of this act shall not be construed to prevent an employer from prescribing conditions with regard to smoking while on the job or on the premises of the employer.
Added by Laws 1991, c. 172, § 12, emerg. eff. May 8, 1991.
§40-502. Application of act - Restriction on smoking as bona fide occupational requirement or part of collective bargaining agreement.
The provisions of Sections 11 through 14 of this act shall not apply when the restriction on smoking relates to a bona fide occupational requirement or an applicable collective bargaining agreement which prohibits or allows off-duty use of tobacco products.
Added by Laws 1991, c. 172, § 13, emerg. eff. May 8, 1991.
§40-503. Action for damages - Costs and attorney fees.
A. The sole remedy for any individual claiming to be aggrieved by a violation of Section 11 of this act shall be a civil action for damages which shall include all wages and benefits deprived the individual by reason of the violation.
B. The court shall award the prevailing party in such action court costs and reasonable attorney fees.
Added by Laws 1991, c. 172, § 14, emerg. eff. May 8, 1991.
§40-551. Short title.
Sections 1 through 15 of this act shall be known and may be cited as the "Standards for Workplace Drug and Alcohol Testing Act".
Added by Laws 1993, c. 355, § 1, emerg. eff. June 10, 1993.
§40-552. See OS 40-552v1 or OS 40-552v2.
§40-552v1. Definitions.
As used in the Standards for Workplace Drug and Alcohol Testing Act:
1. "Alcohol" means ethyl alcohol or ethanol;
2. "Applicant" means a person who has applied for a position with an employer;
3. "Board" means the State Board of Health;
4. "Confirmation test" means a drug or alcohol test on a sample to substantiate the results of a prior drug or alcohol test on the same sample and which uses different chemical principles and is of equal or greater accuracy than the prior drug or alcohol test;
5. "Department" means the State Department of Health;
6. "Drug" means amphetamines, cannabinoids, cocaine, phencyclidine (PCP), hallucinogens, methaqualone, opiates, barbiturates, benzodiazepines, synthetic narcotics, designer drugs, or a metabolite of any of the substances listed herein;
7. "Drug or alcohol test" means a chemical test administered for the purpose of determining the presence or absence of a drug or its metabolites or alcohol in a person's bodily tissue, fluids or products;
8. "Employee" means any person who supplies a service for remuneration or pursuant to any contract for hire to a private or public employer in this state;
9. "Employer" means any person, firm, corporation, partnership, association, nonprofit organization or public employer, which has one or more employees within this state, or which has offered or may offer employment to one or more individuals in this state;
10. "Public employer" means the State of Oklahoma or any political subdivision thereof, including any department, agency, board, commission, institution, authority, public trust, municipality, county, district or instrumentalities thereof;
11. "Random selection basis" means a mechanism for selecting employees for drug or alcohol testing that:
a. results in an equal probability that any employee from a group of employees subject to the selection mechanism will be selected, and
b. does not give an employer discretion to waive the selection of any employee selected under the mechanism;
12. "Reasonable suspicion" means a belief that an employee is using or has used drugs or alcohol in violation of the employer's written policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience, and may be based upon, among other things:
a. observable phenomena, such as:
(1) the physical symptoms or manifestations of being under the influence of a drug or alcohol while at work or on duty, or
(2) the direct observation of drug or alcohol use while at work or on duty,
b. a report of drug or alcohol use while at work or on duty, provided by reliable and credible sources and which has been independently corroborated,
c. evidence that an individual has tampered with a drug or alcohol test during his employment with the current employer, or
d. evidence that an employee is involved in the use, possession, sale, solicitation or transfer of drugs while on duty or while on the employer's premises or operating the employer's vehicle, machinery or equipment;
13. "Review officer" means a person, qualified by the State Board of Health, who is responsible for receiving results from a testing facility which have been generated by an employer's drug or alcohol testing program, and who has knowledge and training to interpret and evaluate an individual's test results together with the individual's medical history and any other relevant information;
14. "Sample" means tissue, fluid or product of the human body chemically capable of revealing the presence of drugs or alcohol in the human body; and
15. "Testing facility" means any person, including any laboratory, hospital, clinic or facility, either off or on the premises of the employer, which provides laboratory services to test for the presence of drugs or alcohol in the human body.
Added by Laws 1993, c. 355, § 2, emerg. eff. June 10, 1993. Amended by Laws 2000, c. 335, § 1, emerg. eff. June 6, 2000; Laws 2005, c. 134, § 1, eff. Nov. 1, 2005.
§40-552v2. Definitions.
As used in the Standards for Workplace Drug and Alcohol Testing Act:
1. "Alcohol" means ethyl alcohol or ethanol;
2. "Applicant" means a person who has applied for a position with an employer;
3. "Board" means the State Board of Health;
4. "Confirmation test" means a drug or alcohol test on a sample to substantiate the results of a prior drug or alcohol test on the same sample and which uses different chemical principles and is of equal or greater accuracy than the prior drug or alcohol test;
5. "Department" means the State Department of Health;
6. "Drug" means amphetamines, cannabinoids, cocaine, phencyclidine (PCP), hallucinogens, methaqualone, opiates, barbiturates, benzodiazepines, synthetic narcotics, designer drugs, or a metabolite of any of the substances listed herein;
7. "Drug or alcohol test" means a chemical test administered for the purpose of determining the presence or absence of a drug or its metabolites or alcohol in a person's bodily tissue, fluids or products;
8. "Employee" means any person who supplies a service for remuneration or pursuant to any contract for hire to a private or public employer in this state;
9. "Employer" means any person, firm, corporation, partnership, association, nonprofit organization or public employer, which has one or more employees within this state, or which has offered or may offer employment to one or more individuals in this state;
10. "Public employer" means the State of Oklahoma or any political subdivision thereof, including any department, agency, board, commission, institution, authority, public trust, municipality, county, district or instrumentalities thereof;
11. "Random selection basis" means a mechanism for selecting employees for drug or alcohol testing that:
a. results in an equal probability that any employee from a group of employees subject to the selection mechanism will be selected, and
b. does not give an employer discretion to waive the selection of any employee selected under the mechanism;
12. "Reasonable suspicion" means a belief that an employee is using or has used drugs or alcohol in violation of the employer's written policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience, and may be based upon, among other things:
a. observable phenomena, such as:
(1) the physical symptoms or manifestations of being under the influence of a drug or alcohol while at work or on duty, or
(2) the direct observation of drug or alcohol use while at work or on duty,
b. a report of drug or alcohol use while at work or on duty, provided by reliable and credible sources and which has been independently corroborated,
c. evidence that an individual has tampered with a drug or alcohol test during his employment with the current employer, or
d. evidence that an employee is involved in the use, possession, sale, solicitation or transfer of drugs while on duty or while on the employer's premises or operating the employer's vehicle, machinery or equipment;
13. "Review officer" means a person, qualified by the State Board of Health, who is responsible for receiving results from a testing facility which have been generated by an employer's drug or alcohol testing program, and who has knowledge and training to interpret and evaluate an individual's test results together with the individual's medical history and any other relevant information;
14. "Sample" means tissue, fluid or product of the human body chemically capable of revealing the presence of drugs or alcohol in the human body; and
15. "Testing facility" means any person, including any laboratory, hospital, clinic or facility, either off or on the premises of the employer, which provides laboratory services to test for the presence of drugs or alcohol in the human body. The administration of on-site drug or alcohol screening tests to applicants or employees to screen out negative test results are not laboratory services under this paragraph, provided the on-site tests used are cleared by the federal Food and Drug Administration for commercial marketing or by the National Highway Traffic Safety Administration for alcohol testing, and all positive results of such tests are confirmed by a testing facility in accordance with the Standards for Workplace Drug and Alcohol Testing Act.
Added by Laws 1993, c. 355, § 2, emerg. eff. June 10, 1993. Amended by Laws 2000, c. 335, § 1, emerg. eff. June 6, 2000; Laws 2005, c. 190, § 5, eff. Sept. 1, 2005.
§40-553. Construction of act.
A. The Standards for Workplace Drug and Alcohol Testing Act shall not be construed as requiring or encouraging employers to conduct drug or alcohol testing.
B. Except as provided in subsection C of this section, employers who choose to conduct drug or alcohol testing of job applicants or persons employed in this state shall be governed by the provisions of this act and the rules promulgated pursuant thereto.
C. Drug or alcohol testing required by and conducted pursuant to federal law or regulation shall be exempt from the provisions of the Standards for Workplace Drug and Alcohol Testing Act and the rules promulgated pursuant thereto.
D. This act shall not be construed as preventing the negotiation of collective bargaining agreements that provide greater protection to employees or applicants than is provided by this act.
Added by Laws 1993, c. 355, § 3, emerg. eff. June 10, 1993.
§40-554. Drug or alcohol testing by employers - Restrictions.
Employers who choose to conduct drug or alcohol testing may only request or require an applicant or employee to undergo testing under the following circumstances:
1. Applicant testing: A public or private employer may request or require a job applicant, upon a conditional offer of employment, to undergo drug or alcohol testing and may use a refusal to undergo testing or a confirmed positive test result as a basis for refusal to hire, provided that such testing does not violate the provisions of the Americans with Disabilities Act of 1990, 42 U.S.C., Section 12101 et seq., and provided that such testing is required for all applicants who have received a conditional offer of employment for a particular employment classification;
2. Reasonable suspicion testing: A public or private employer may request or require an employee to undergo drug or alcohol testing if the employer has a reasonable suspicion that the employee has violated the employer's written policy;
3. Post-accident testing: A public or private employer may require an employee to undergo drug or alcohol testing if the employee or another person has sustained a work-related injury or the employer's property has been damaged, including damage to equipment, in an amount reasonably estimated at the time of the accident to exceed Five Hundred Dollars ($500.00). For purposes of workers' compensation or unemployment compensation, no employee who tests positive for the presence of substances defined and consumed pursuant to Section 465.20 of Title 63 of the Oklahoma Statutes, alcohol, illegal drugs, or illegally used chemicals shall be eligible for such compensation unless the employee proves by a preponderance of the evidence that the substances, alcohol, illegal drugs, or illegally used chemicals were not the proximate cause of the injury or accident;
4. Random testing: A public or private employer may request or require an employee to undergo drug or alcohol testing on a random selection basis, except that a public employer may require random testing only of employees who:
a. are police or peace officers,
b. have drug interdiction responsibilities,
c. are authorized to carry firearms,
d. are engaged in activities which directly affect the safety of others, or
e. work in direct contact with inmates in the custody of the Department of Corrections or work in direct contact with juvenile delinquents or children in need of supervision in the custody of the Department of Human Services;
5. Scheduled, periodic testing: A public or private employer may request or require an employee to undergo drug or alcohol testing if the test is conducted as a routine part of a routinely scheduled employee fitness-for-duty medical examination or is scheduled routinely for all members of an employment classification or group and which is part of the employer's written policy, except that a public employer may require scheduled, periodic testing only of employees who:
a. are police or peace officers,
b. have drug interdiction responsibilities,
c. are authorized to carry firearms,
d. are engaged in activities which directly affect the safety of others, or
e. work in direct contact with inmates in the custody of the Department of Corrections or work in direct contact with juvenile delinquents or children in need of supervision in the custody of the Department of Human Services; and
6. Post-rehabilitation testing: A public or private employer may request or require an employee to undergo drug or alcohol testing without prior notice for a period of up to two (2) years commencing with the employee's return to work, following a confirmed positive test or following participation in a drug or alcohol dependency treatment program under an employee benefit plan or at the request of the employer.
Added by Laws 1993, c. 355, § 4, emerg. eff. June 10, 1993. Amended by Laws 2001, 1st Ex Sess., c. 3, § 1, emerg. eff. Oct. 23, 2001; Laws 2005, 1st Ex.Sess., c. 1, § 4, eff. July 1, 2005.
§40-555. Written employer's policy required - Contents.
A. No employer may request or require an applicant or employee to undergo drug or alcohol testing unless the employer has first adopted a written, detailed policy setting forth the specifics of its drug or alcohol testing program. The written policy shall be uniformly applied to those covered by the policy and shall include, but not be limited to, the following information:
1. A statement of the employer's policy respecting drug or alcohol use by employees;
2. Which applicants and employees are subject to testing;
3. Circumstances under which testing may be requested or required;
4. Substances which may be tested, including the brand or common name, if any, and the chemical name of any drug or its metabolite to be tested;
5. Testing methods and collection procedures to be used;
6. Consequences of refusing to undergo testing;
7. Potential adverse personnel action which may be taken as a result of a positive test result;
8. The rights of an applicant and employee to explain, in confidence, the test results;
9. The rights of an applicant and employee to obtain all information and records related to that individual's testing;
10. Confidentiality requirements; and
11. The available appeal procedures, remedies and sanctions.
B. An employer who is implementing a drug or alcohol testing policy for the first time, or is implementing changes to its policy, shall provide at least thirty (30) days' notice to its employees prior to implementation of the policy or changes to the policy.
C. An employer shall post a copy of the drug or alcohol testing policy, and any changes to the policy, in a prominent employee access area in the place of employment and shall give a copy of the policy, and any changes to the policy, to each employee and to each applicant upon his or her receipt of a conditional offer of employment.
Added by Laws 1993, c. 355, § 5, emerg. eff. June 10, 1993.
§40-556. Time of employer testing - Payment of costs.
A. Any drug or alcohol testing by an employer shall occur during or immediately after the regular work period of current employees and shall be deemed work time for purposes of compensation and benefits for current employees.
B. An employer shall pay all costs of testing for drugs or alcohol required by the employer, including confirmation tests required by this act and the cost of transportation if the testing of a current employee is conducted at a place other than the workplace. Provided, however, an individual who requests a retest of a sample in order to challenge the results of a positive test shall pay all costs of the retest, unless the retest reverses the findings of the challenged positive test. In such case, the employer shall reimburse the individual for the costs of the retest.
Added by Laws 1993, c. 355, § 6, emerg. eff. June 10, 1993.
§40-557. Testing standards and procedures - Implementation and enforcement - Rules.
A. The State Board of Health shall implement and enforce the provisions of the Standards for Workplace Drug and Alcohol Testing Act. The Board shall have the power and duty to promulgate, prescribe, amend and repeal rules for the licensure and regulation of testing facilities and for the establishment and regulation of minimum testing standards and procedures, which shall include, but not be limited to, the following:
1. Qualifications of testing facilities which shall include the requirement that facilities doing urine analysis for initial or confirmation tests either be certified for forensic urine drug testing pursuant to guidelines or regulations of the federal Department of Health and Human Services or be accredited for forensic urine drug testing by the College of American Pathologists or other organizations recognized by the State Board of Health;
2. Qualifications of testing facility personnel;
3. Body component samples that are appropriate for drug and alcohol testing;
4. The drugs in addition to marihuana, cocaine, opiates, amphetamines and phencyclidine, and their metabolites, for which testing may be conducted;
5. Methods of analysis and internal quality control procedures to ensure reliable test results;
6. Internal review and certification process for test results;
7. Security measures to preclude adulteration;
8. Chain-of-custody procedures;
9. Retention and storage procedures and durations to ensure availability of samples for retesting;
10. Procedures for ensuring confidentiality of test results;
11. Proficiency testing;
12. Training and qualifications of review officers which shall include, but not be limited to, licensure to practice medicine and surgery or osteopathic medicine or holding a doctorate in clinical chemistry, forensic toxicology, or a similar biomedical science;
13. Training and qualifications of collection site personnel;
14. Sample collection procedures that ensure the privacy of the individual and prevent and detect tampering with the sample; and
15. Sample documentation, storage and transportation to the testing facility.
B. The rules promulgated by the State Board of Health pursuant to the provisions of this act shall in all applicable respects be consistent with any federal laws and regulations for drug and alcohol testing in the workplace and shall include safeguards, standards and procedures not less stringent than those applicable to federally regulated drug and alcohol testing in the workplace, except where to do so would create a conflict with a provision of this act.
Added by Laws 1993, c. 355, § 7, emerg. eff. June 10, 1993.
§40-558. Licensing of testing facilities - Fees - Administrative fines.
A. On and after July 1, 1994, no testing facility shall provide laboratory services to an employer to test for the presence or absence of drugs or alcohol unless it meets the qualifications established for testing facilities pursuant to Section 7 of this act and is licensed by the State Department of Health to perform such tests. The State Board of Health shall promulgate rules relating to the issuance of such license, including rules governing license revocation, suspension and nonrenewal.
B. The fees for licensure of testing facilities by the State Department of Health shall be set by the State Board of Health and shall not be more than One Hundred Fifty Dollars ($150.00) annually.
C. Any testing facility providing laboratory services to an employer to test for the evidence of drugs or alcohol which is not licensed by the State Department of Health pursuant to this section shall be subject to an administrative fine of not more than Five Hundred Dollars ($500.00) for each offense. Each test performed by the unlicensed testing facility in violation of this section shall constitute a separate offense.
Added by Laws 1993, c. 355, § 8, emerg. eff. June 10, 1993.
§40-559. Sample collection and testing - Conditions.
All sample collection and testing for drugs and alcohol pursuant to the provisions of this act shall be conducted in accordance with the following conditions:
1. Samples shall be collected and tested only by individuals deemed qualified by the State Board of Health and may be collected on the premises of the employer;
2. Only samples deemed appropriate by the State Board of Health for drug and alcohol testing shall be collected;
3. The collection of samples shall be performed under reasonable and sanitary conditions;
4. A sample shall be collected in sufficient quantity for splitting into two separate specimens, pursuant to rules of the State Board of Health, to provide for any subsequent independent analysis in the event of challenge of the test results of the main specimen;
5. Samples shall be collected and tested with due regard to the privacy of the individual being tested. In the instances of urinalysis, no employer or representative, agent or designee of the employer shall directly observe an applicant or employee in the process of producing a urine sample; provided, however, collection shall be in a manner reasonably calculated to prevent substitutions or interference with the collection or testing of reliable samples;
6. Sample collection shall be documented, and the documentation procedures shall include:
a. labeling of samples so as reasonably to preclude the probability of erroneous identification of test results, and
b. an opportunity for the applicant or employee to provide notification of any information which the applicant or employee considers relevant to the test, including identification of currently or recently used prescription or nonprescription drugs, or other relevant information;
7. Sample collection, storage, and transportation to the testing facility shall be performed so as reasonably to preclude the probability of sample contamination or adulteration;
8. Sample testing shall conform to scientifically accepted analytical methods and procedures. Testing shall include confirmation of any positive test result by gas chromatography, gas chromatography-mass spectroscopy, or an equivalent scientifically accepted method of equal or greater accuracy as approved by Board rule, at the cutoff levels as determined by Board rule, before the result of any test may be used as a basis for refusal to hire a job applicant or any action by an employer pursuant to Section 12 of this act; and
9. A written record of the chain of custody of the sample shall be maintained from the time of the collection of the sample until the sample is no longer required.
Added by Laws 1993, c. 355, § 9, emerg. eff. June 10, 1993.
§40-560. Confidentiality of testing results and records - Disclosure of general health information prohibited.
A. Employers shall maintain all drug and alcohol test results and related information, including, but not limited to, interviews, reports, statements and memoranda, as confidential records, separate from other personnel records. Such records, including the records of the testing facility, shall not be used in any criminal proceeding, or any civil or administrative proceeding, except in those actions taken by the employer or in any action involving the individual tested and the employer or unless such records are ordered released pursuant to a valid court order.
B. The records described in subsection A of this section and maintained by the employer shall be the property of the employer and, upon the request of the applicant or employee tested, shall be made available for inspection and copying to the applicant or employee. An employer shall not release such records to any person other than the applicant, employee or the employer's review officer, unless the applicant or employee, in writing following receipt of the test results, has expressly granted permission for the employer to release such records or pursuant to a valid court order.
C. A testing facility, or any agent, representative or designee of the facility, or any review officer, shall not disclose to any employer, based on the analysis of a sample collected from an applicant or employee for the purpose of testing for the presence of drugs or alcohol, any information relating to:
1. The general health, pregnancy or other physical or mental condition of the applicant or employee; or
2. The presence of any drug other than the drug or its metabolites that the employer requested be identified and for which a medically acceptable explanation of the positive result, other than the use of drugs, has not been forthcoming from the applicant or employee.
Provided, however, a testing facility shall release the results of the drug or alcohol test, and any analysis and information related thereto, to the individual tested upon his request.
Added by Laws 1993, c. 355, § 10, emerg. eff. June 10, 1993.
§40-561. Employee assistance program.
Drug or alcohol testing governed by the Standards for Workplace Drug and Alcohol Testing Act shall not be requested or required of an employee by an employer unless the employer provides an employee assistance program. For the purposes of this section, "employee assistance program" means an in-house or contracted program which at a minimum provides drug and alcohol dependency evaluation and referral services for substance abuse counseling, treatment or rehabilitation.
Added by Laws 1993, c. 355, § 11, emerg. eff. June 10, 1993.
§40-562. Disciplinary actions permitted.
A. No disciplinary action, except for a temporary suspension or a temporary transfer to another position, may be taken by an employer against an employee based on a positive test result unless the test result has been confirmed by a second test using gas chromatography, gas chromatography-mass spectroscopy, or an equivalent scientifically accepted method of equal or greater accuracy as approved by rule of the State Board of Health, at the cutoff levels determined by Board rule.
B. An employer may take disciplinary action against an employee who refuses to undergo drug or alcohol testing conducted in accordance with the provisions of this act.
C. An employee discharged on the basis of a refusal to undergo drug or alcohol testing or a confirmed positive drug or alcohol test conducted in accordance with the provisions of this act shall be considered to have been discharged for misconduct for purposes of unemployment compensation benefits as provided for in Section 16 of this act.
Added by Laws 1993, c. 355, § 12, emerg. eff. June 10, 1993.
§40-563. Willful violation of act - Civil actions - Remedies.
A. Any person aggrieved by a willful violation of the Standards for Workplace Drug and Alcohol Testing Act may institute a civil action in a court of competent jurisdiction within two (2) years of the person's discovery of the alleged willful violation or of the exhaustion of any internal administrative remedies available to the person, or be barred from obtaining the relief provided for in subsection B of this section.
B. A prevailing party may be awarded declaratory or injunctive relief and compensatory damages which may include, but not be limited to, employment, reinstatement, promotion, the payment of lost wages and other remuneration to which the person would have been entitled and payment of and reinstatement to full benefits and seniority rights. Reasonable costs and attorney fees may be awarded to the prevailing party.
Added by Laws 1993, c. 355, § 13, emerg. eff. June 10, 1993.
§40-564. Time for compliance with act.
On and after the effective date of this act no employer shall implement a drug or alcohol testing program subject to the provisions of this act unless the program is in compliance with the provisions of this act and the rules promulgated pursuant thereto. Provided, a drug or alcohol testing program subject to the provisions of this act which is in effect prior to the effective date of this act shall be in compliance with the provisions of this act and the rules promulgated pursuant thereto no later than July 1, 1994.
Added by Laws 1993, c. 355, § 14, emerg. eff. June 10, 1993.
§40-565. Violations - Penalties.
Any person who willfully and knowingly violates the provisions of the Standards for Workplace Drug and Alcohol Testing Act shall be guilty of a misdemeanor and, upon conviction, punishable by a fine of not less than One Hundred Dollars ($100.00) nor more than Five Thousand Dollars ($5,000.00) or imprisonment in the county jail for not more than one (1) year, or by both such fine and imprisonment.
Added by Laws 1993, c. 355, § 15, emerg. eff. June 10, 1993.
§40-600.1. Short title - Legislative findings.
A. This act shall be known and may be cited as the "Oklahoma Professional Employer Organization Recognition and Registration Act".
B. The Legislature hereby finds:
1. That professional employer organizations provide a valuable service to commerce and the citizens of this state by increasing the opportunities of employers to develop cost-effective methods of satisfying their personnel requirements and providing employees with access to certain employment benefits which might otherwise not be available to them;
2. That professional employer organizations operating in this state should be properly recognized and regulated by the Department of Insurance of this state, as provided in this act; and
3. That any allocation of the employer's duties and responsibilities pursuant to this act will preserve all rights to which their covered employees would be entitled under a traditional employment relationship.
Added by Laws 2002, c. 64, § 1, eff. Nov. 1, 2002.
§40-600.2. Definitions.
1. "Client" means any person who enters into a coemployment relationship as a coemployer with a professional employer organization (PEO);
2. "Coemployer" means either a PEO or a client;
3. "Coemployment relationship" means:
a. as between coemployers, a relationship whereby the rights, duties and obligations of an employer which arise out of an employment relationship have been allocated between coemployers pursuant to a professional employer agreement and the Oklahoma Professional Employer Organization Recognition and Registration Act, and which is intended to be an ongoing relationship, rather than a temporary or project specific relationship, and
b. as between each PEO and a covered employee as to which a professional employer agreement applies, an employment relationship whereby:
(1) such PEO is entitled to enforce those rights, and obligated to perform those duties and obligations, allocated to such PEO by the professional employer agreement and the Oklahoma Professional Employer Organization Recognition and Registration Act, and
(2) such covered employee is entitled to enforce against such PEO those duties and obligations allocated to the PEO by the professional employer agreement and the Oklahoma Professional Employer Organization Recognition and Registration Act;
c. as between each client and a covered employee to which a professional employer agreement applies and employment relationship whereby:
(1) such client is entitled to enforce those rights, and obligated to provide and perform those employer obligations allocated to such client by the professional employer agreement and the Oklahoma Professional Employer Organization Recognition and Registration Act and whereby such client is responsible for any employer right or obligation not otherwise allocated by the professional employer agreement of the Oklahoma Professional Employer Organization Recognition and Registration Act, and
(2) such covered employee is entitled to enforce against such client those duties and obligations allocated to the client by the professional employer agreement and the Oklahoma Professional Employer Organization Recognition and Registration Act and any other duties and obligations of an employer not otherwise allocated by the professional employer agreement or the Oklahoma Professional Employer Organization Recognition and Registration Act;
4. "Commissioner" means the Insurance Commissioner of the State of Oklahoma;
5. "Covered Employee" means an individual having a coemployment relationship with a PEO and a client who have entered into a professional employer agreement with respect to such person, and shall include the client's officers, directors, shareholders, partners and managers to the extent such persons act as operational managers or perform services for the client;
6. "Department" means the Department of Insurance of the State of Oklahoma;
7. "Person" means any individual, partnership, corporation, limited liability company, association, or any other form of legally recognized entity;
8. "Professional employer agreement" means a written contract by and between a client and a PEO under which the PEO and the client agree to establish a coemployment relationship and which satisfies the requirements of subsection C of Section 7 of this act;
9. "Professional Employer Organization" or PEO means any person engaged in the business of providing professional employer services. A person engaged in the business of providing professional employer services shall be subject to registration under the Oklahoma Professional Employer Organization Recognition and Registration Act regardless of its use of the term "professional employer organization", "PEO", "staff leasing company", "registered staff leasing company", "employee leasing company", or any other name;
10. "Professional employer services" means the service of entering into coemployment relationships under the Oklahoma Professional Employer Organization Recognition and Registration Act, in which, except in isolated instances, all or a majority of the employees providing services to a client or to a division or work unit of client are covered employees;
11. "Registrant" means a PEO registered under the Oklahoma Professional Employer Organization Recognition and Registration Act; and
12. "Temporary help services" means a service whereby a person hires workers and assigns them to a person for a temporary time period or nonpermanent basis to support or supplement the other person's workforce in special work situations such as, but not limited to, employee absences, temporary skill shortages, seasonal workloads, and special assignments and projects. Temporary help services shall not be deemed professional employer services.
Added by Laws 2002, c. 64, § 2, eff. Nov. 1, 2002.
§40-600.3. Effect of act on collective bargaining agreements, licensing, and tax credits.
A. Collective bargaining agreements. Nothing contained in the Oklahoma Professional Employer Organization Recognition and Registration Act or in any professional employer agreement shall affect, modify or amend any collective bargaining agreement, or the rights or obligations of any client, PEO, or covered employee under the National Labor Relations Act.
B. Licensing. Nothing contained in the Oklahoma Professional Employer Organization Recognition and Registration Act or any professional employer agreement shall affect, modify or amend any state, local, or federal licensing, registration, or certification requirement applicable to any client or covered employee.
C. Licensed employees. A covered employee who must be licensed, registered, or certified according to law or regulation is deemed solely an employee of the client for purposes of any such license, registration, or certification requirement.
D. Licensed activities. A PEO shall not be deemed to engage in any occupation, trade, profession, or other activity that is subject to licensing, registration, or certification requirements, or is otherwise regulated by a governmental entity solely by entering into and maintaining a coemployment relationship with a covered employee who is subject to such requirements or regulation.
E. Tax credits and other incentives. For purposes of determination of tax credits and other economic incentives provided by this state and based on employment, covered employees shall be deemed employees solely of the client. A client shall be entitled to the benefit of any tax credit, economic incentive, or other benefit arising as the result of the employment of covered employees of such client. Each PEO will provide, upon request by a client, employment information reasonably required by any agency or department of this state responsible for administration of any such tax credit or economic incentive and necessary to support any request, claim, application, or other action by a client seeking any such tax credit or economic incentive.
Added by Laws 2002, c. 64, § 3, eff. Nov. 1, 2002.
§40-600.4. Registration - De minimus exemption.
A. Registration required. Except as otherwise provided in the Oklahoma Professional Employer Organization Recognition and Registration Act, no person shall, unless such person is registered as a PEO under the Oklahoma Professional Employer Organization Recognition and Registration Act, provide, advertise, or otherwise hold itself out as providing professional employer services in this state.
B. Registration information. Each PEO required to be registered under the Oklahoma Professional Employer Organization Recognition and Registration Act shall provide the Commissioner with information required by the Commissioner on forms prescribed by the Commissioner. At a minimum, PEOs shall provide the following information:
1. The name or names under which the PEO conducts business;
2. The address of the principal place of business of the PEO and the address of each office it maintains in this state;
3. The PEO's taxpayer or employer identification number;
4. A list by jurisdiction of each name under which the PEO has operated in the preceding five (5) years, including any alternative names, names of predecessors and, if known, successor business entities;
5. A statement of ownership, which shall include the name and evidence of the business experience of any person that, individually or acting in concert with one or more other persons, owns or controls, directly or indirectly, twenty-five percent (25%) or more of the equity interests of the PEO;
6. A statement of management, which shall include the name and evidence of the business experience of any person who serves as president, chief executive officer, or otherwise has the authority to act as senior executive officer of the PEO; and
7. A financial statement setting forth the financial condition of the PEO, as of a date not earlier than one hundred eighty (180) days prior to the date submitted to the Commissioner, prepared in accordance with generally accepted accounting principles, and audited or reviewed by an independent certified public accountant licensed to practice in the jurisdiction in which such accountant is located. A PEO Group may submit combined or consolidated audited or reviewed financial statements to meet the requirements of this section.
C. Initial registration.
1. Each PEO operating within this state as of November 1, 2002, shall complete its initial registration not later than one hundred eighty (180) days after the end of the PEO's first fiscal year ending after November 1, 2002.
2. Each PEO not operating within this state as of November 1, 2002, shall complete its initial registration prior to commencement of operations within this state.
D. Renewal. Within one hundred eighty (180) days after the end of a registrant's fiscal year, such registrant shall renew its registration by notifying the Commissioner of any changes in the information provided in such registrant's most recent registration or renewal.
E. Group registration. Any two or more PEOs held under common control of any other person or persons acting in concert may be registered as a PEO Group. A PEO Group may satisfy any reporting and financial requirements of this registration law on a consolidated basis.
F. De minimis exemption.
1. A PEO is exempt from the registration requirements payable under the Oklahoma Professional Employer Organization Recognition and Registration Act if such PEO:
a. submits a properly executed request for exemption on a form provided by the Department,
b. is domiciled outside this state and is licensed or registered as a professional employer organization in another state that has the same or greater requirements as the Oklahoma Professional Employer Organization Recognition and Registration Act,
c. does not maintain an office in this state or solicit in any manner clients located or domiciled within this state, and
d. does not have more than twenty-five covered employees employed or domiciled in this state; and
2. An exemption of a professional employer organization from the registration requirements under the Oklahoma Professional Employer Organization Recognition and Registration Act shall be valid for one (1) year, subject to renewal.
G. List. The Commissioner shall maintain a list of professional employer organizations registered or exempted under this Oklahoma Professional Employer Organization Recognition and Registration Act.
H. Forms. The Commissioner may prescribe forms necessary to promote the efficient administration of this section.
Added by Laws 2002, c. 64, § 4, eff. Nov. 1, 2002.
§40-600.5. Registration fees.
A. Initial registration. Upon filing an initial registration statement under the Oklahoma Professional Employer Organization Recognition and Registration Act, a PEO shall pay an initial registration fee of Five Hundred Dollars ($500.00).
B. Renewal. Upon each annual renewal of a registration statement filed under the Oklahoma Professional Employer Organization Recognition and Registration Act, a PEO shall pay a renewal fee of Two Hundred Fifty Dollars ($250.00).
C. Exemption. Each PEO exempt from registration under the terms of this subsection shall pay an exemption fee in the amount of Two Hundred Fifty Dollars ($250.00) upon initial application for exemption and upon each annual renewal of such exemption.
Added by Laws 2002, c. 64, § 5, eff. Nov. 1, 2002.
§40-600.6. Financial and tax requirements - Confidentiality.
A. Net worth and bonding. Each PEO shall maintain either:
1. A minimum net worth of Fifty Thousand Dollars ($50,000.00), as reflected in the financial statements submitted to the Commissioner with the initial registration and each annual renewal; or
2. A bond or securities with a minimum market value of Fifty Thousand Dollars ($50,000.00), held by a depository designated by the Commissioner, securing payment by the PEO of all taxes, wages, benefits or other entitlement due to or with respect to a covered employee, if the PEO does not make such payments when due. Any bond or securities deposited under this subsection shall not be included for the purpose of calculation of the minimum net worth required by this subsection.
B. Payroll tax payments. A PEO shall submit to the Commissioner, within ninety (90) days after the end of each calendar quarter, a statement by an independent certified public accountant that all applicable state payroll taxes for covered employees located in this state have been paid on a timely basis for that quarter.
C. Record confidentiality. All records, reports and other information obtained from a PEO under the Oklahoma Professional Employer Organization Recognition and Registration Act, except to the extent necessary for the proper administration of the Oklahoma Professional Employer Organization Recognition and Registration Act by the Department, shall be confidential and shall not be published or open to public inspection other than to public employees in the performance of their public duties.
Added by Laws 2002, c. 64, § 6, eff. Nov. 1, 2002.
§40-600.7. Contract requirements - Rights and duties of employer, employee, and client - Notice - Workers' compensation - Benefit plans - Liability - Sales tax.
A. Contractual relationship. Except as specifically provided in the Oklahoma Professional Employer Organization Recognition and Registration Act, the coemployment relationship between the client and the PEO, and between each coemployer and each covered employee, shall be governed by the professional employer agreement. Nothing contained in any professional employer agreement or the Oklahoma Professional Employer Organization Recognition and Registration Act shall be deemed to:
1. Diminish, abolish or remove rights of covered employees as to clients or obligations of such client as to a covered employee, existing prior to the effective date of a professional employer agreement;
2. Terminate an employment relationship existing prior to the effective date of a professional employer agreement; or
3. Create any new or additional enforcement right of a covered employee against a PEO not specifically allocated to such PEO in the professional employer agreement or the Oklahoma Professional Employer Organization Recognition and Registration Act.
B. Allocation of rights, duties and obligations. Except as specifically provided in the Oklahoma Professional Employer Organization Recognition and Registration Act or in the professional employer agreement, in each coemployment relationship:
1. The client shall be entitled to exercise all rights, and shall be obligated to perform all duties and responsibilities, otherwise applicable to an employer in an employment relationship; and
2. The PEO shall be entitled to exercise only those rights, and obligated to perform only those duties and responsibilities, specifically required by the Oklahoma Professional Employer Organization Recognition and Registration Act or set forth in the professional employer agreement. The rights, duties, and obligations of the PEO as coemployer with respect to any covered employee shall be limited to those arising pursuant to the professional employer agreement and the Oklahoma Professional Employer Organization Recognition and Registration Act during the term of coemployment by the PEO of such covered employee.
C. Professional employer agreement requirements. Each professional employer agreement shall include, at a minimum, the following:
1. The PEO shall reserve a right of direction and control over the covered employees; provided, that the client may retain the right to exercise such direction and control over covered employees as is necessary to conduct the client's business, to discharge any fiduciary responsibility which it may have, or to comply with any applicable licensure requirements;
2. The PEO shall have responsibility to pay wages and salaries to covered employees; to withhold, collect, report, and remit payroll-related and unemployment taxes; and, to the extent the PEO has assumed responsibility in the professional employer agreement, to make payments for employee benefits for covered employees;
3. Both the PEO and the client shall retain authority to hire, terminate, and discipline the covered employees; and
4. The responsibility to obtain workers' compensation coverage for covered employees, from a carrier licensed to do business in this state and otherwise in compliance with all applicable requirements, shall be specifically allocated to either the client or the PEO. If such responsibility is allocated to the PEO under any such agreement, such agreement shall require that the PEO maintain and provide to the client, at the termination of the agreement if requested by the client, records regarding the premium and loss experience related to workers' compensation insurance provided to covered employees pursuant to such agreement.
D. Notice to covered employees. With respect to each professional employer agreement entered into by a PEO, such PEO shall provide written notice to each covered employee affected by such agreement of the general nature of the coemployment relationship between and among the PEO, the client, and such covered employee.
E. Workers' compensation. Both client and the PEO shall be considered the employer for the purpose of coverage under the Workers' Compensation Act and both the PEO and its client shall be entitled to protection of the exclusive remedy provision of the Workers' Compensation Act irrespective of which coemployer obtains such workers' compensation coverage.
F. Benefit plans.
1. A client and a PEO shall each be deemed an employer for purposes of sponsoring retirement and welfare benefit plans for its covered employees.
2. A welfare benefit plan offered to the covered employees of a single PEO shall not be considered a multiple employer welfare arrangement, or MEWA, as provided for in Section 633 of Title 36 of the Oklahoma Statutes, and shall be exempt from the licensing requirements contained in Section 634 of Title 36 of the Oklahoma Statutes.
3. For purposes of the Small Employer Health Reform Act, a PEO shall be considered the employer of all of its covered employees and all covered employees of one or more clients participating in a health benefit plan sponsored by a single PEO shall be considered employees of the PEO.
4. If a PEO offers to its covered employees any health benefit plan which is not fully insured by an authorized insurer, the plan shall:
a. utilize a third-party administrator licensed to do business in this state,
b. hold all plan assets, including participant contributions, in a trust account, and
c. provide sound reserves for such plan as determined using generally accepted actuarial standards.
G. Limitations on liability. Except to the extent otherwise provided in a professional employer agreement:
1. A PEO shall not be liable for the acts, errors, or omissions of a client, or of any covered employee when such covered employee is acting under the direction and control of a client;
2. A client shall not be liable for the acts, errors, or omissions of a PEO, or of any covered employee of the client and a PEO when such covered employee is acting under the direction and control of the PEO;
3. Nothing in this subsection shall serve to limit any contractual liability or obligation specifically provided in a professional employer agreement, nor shall this subsection in any way limit the liabilities and obligations of any PEO or client as defined elsewhere in the Oklahoma Professional Employer Organization Recognition and Registration Act; and
4. A covered employee is not, solely as the result of being a covered employee of a PEO, an employee of the PEO for purposes of general liability, insurance, fidelity bonds, surety bonds, employer's liability which is not covered by workers' compensation, or liquor liability insurance carried by the PEO unless the covered employees are included by specific reference in the professional employer agreement and applicable prearranged employment contract, insurance contract, or bond.
H. Services not insurance. The sale of professional employer services provided by PEOs registered under the Oklahoma Professional Employer Organization Recognition and Registration Act shall not constitute the sale of insurance for purposes of Oklahoma Insurance Law.
I. Sales taxes. Covered employees whose services are subject to sales tax shall be deemed the employees of the client for purposes of collecting and levying sales tax on the services performed by the covered employee.
Added by Laws 2002, c. 64, § 7, eff. Nov. 1, 2002.
§40-600.8. Unemployment compensation contributions.
A. For purposes of the Employment Security Act of 1980, covered employees of a PEO are considered solely the employees of the PEO, which shall be liable in accordance with the provisions of such act for the payment of contributions, penalties, and interest on wages paid by the PEO to its covered employees during the term of the applicable professional employer agreement.
B. The PEO shall report and pay all required contributions to the unemployment compensation fund using the state employer account number and the contribution rate of the PEO.
Added by Laws 2002, c. 64, § 8, eff. Nov. 1, 2002.
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