2010 Arkansas Code
Title 11 - Labor and Industrial Relations
Chapter 10 - Department of Workforce Services Law
Subchapter 7 - Contributions
§ 11-10-710 - Transfer of experience.

11-10-710. Transfer of experience.

(a) (1) Unless otherwise provided in 11-10-723, any employing unit that acquires the organization, trade, and all of the places of business and substantially all of the assets of any employer, excepting, in any such case, any assets retained by the employer incident to the liquidation of the employer's obligations, whether or not the acquiring employing unit was an employing unit within the meaning of 11-10-208 prior to the acquisition, and that continues the organization, trade, or business as indicated by retaining the predecessor employer's three-digit, North American Industry Classification System Code, shall assume the predecessor employer's actual contributions, regular benefit experience, annual payrolls, liability for current or delinquent contributions, interest, penalty, and otherwise as if no change with respect to the separate account, actual experience, and payrolls or the position of the predecessor employer otherwise had occurred and as if the operations of the predecessor employer had at all times been carried on by the successor employing unit.

(2) The separate account of the predecessor employer shall be transferred by the Director of the Department of Workforce Services to the successor employing unit and, as of the date of the acquisition, shall become the separate account or part of the separate account, as the case may be, of the successor employing unit, and the regular benefits thereafter chargeable to the predecessor employer on account of employment prior to the date of the acquisition shall be charged to the separate account of the successor employing unit.

(b) (1) However, unless otherwise provided in 11-10-723, if any employing unit acquires a segregable and identifiable portion of the business of any employer, whether the acquiring employing unit was an employing unit within the meaning of 11-10-208 prior to the acquisition, and whether the acquisition is the result of reorganization, purchase, inheritance, receivership, or for any other cause, and if the successor employing unit desires to obtain any benefit of the predecessor employer's experience, the successor employing unit must file with the director a petition, signed by all interested parties, within thirty (30) days after the acquisition setting out the percentage of the predecessor employer's actual contributions, regular benefit experience, annual payrolls, payment of contributions, and otherwise that should be transferred to the successor employing unit's separate account.

(2) (A) If the director finds the facts substantially as represented in the petition and that all contributions due by the successor employing unit have been paid, he or she shall transfer the proportionate share of the predecessor employer's separate account to the successor employing unit.

(B) Effective the date of the acquisition, the account transferred under subdivision (b)(2)(A) of this section shall become the separate account or part of the separate account, as the case may be, of the successor employing unit as if no change with respect to the proportionate share of the separate account had occurred.

(c) (1) Following a transfer as described in subsection (a) or (b) of this section, the contribution rate of the successor employing unit shall be determined as follows:

(A) If the successor employing unit is an employer as defined in 11-10-209 at the time of the transfer and has been assigned a contribution rate pursuant to the provisions of this section, the successor employing unit shall continue to pay contributions at the previously assigned contribution rate through the end of the rate year.

(B) If the successor employing unit is not an employer as defined in 11-10-209 at the time of the transfer and acquires the business of one (1) employer or the businesses of two (2) or more employers with the same contribution rate, the successor employing unit shall pay contributions at the contribution rate assigned to the predecessor employer or employers from the date the transfer occurred through the end of the rate year.

(C) If the successor employing unit is not an employer as defined in 11-10-209 at the time of the transfer and simultaneously acquires the businesses of two (2) or more employers with different rates of contributions, the successor employing unit's contribution rate from the date the transfer occurred through the end of the rate year shall be computed on the combined experience of the predecessor employers as of the regular computation date for the rate year in which the transfer occurred.

(2) (A) From and after the end of the rate year in which the transfer occurred, the successor employing unit's rate of contribution for each rate year following the transfer shall be based on the successor employing unit's experience combined with the experience of the predecessor employer or employers as of the regular computation date for the rate year.

(B) However, if at the regular computation date the successor employing unit and the predecessor employer or employers have less than three (3) years of benefit risk as defined in 11-10-707(d):

(i) The contribution rate shall be the new employer contribution rate as set forth in 11-10-704(b)(1); and

(ii) The three (3) years of benefit risk shall be calculated using the established new employer calculation date of the successor employing unit or the calculation date of the predecessor employer or employers, whichever date is the earliest.

(d) (1) (A) The director shall give notice of the determination he or she makes under subsection (a) or (b) of this section to the predecessor employer unless the predecessor employer has consented to the transfer of experience and to the successor employing unit.

(B) The notice shall become conclusive and binding upon each employing unit unless, within twenty (20) days after the mailing date of the notice to the employing unit's last known mailing address, an application for review and redetermination is filed with the director setting forth the employing unit's reasons for seeking a review and redetermination.

(2) (A) (i) (a) The director may deny the application if he or she finds the reasons set forth by the employing unit making application for review and redetermination are insufficient to change his or her determination.

(b) Otherwise, the application for review and redetermination shall be granted, and the director shall make a redetermination.

(ii) The director may issue a redetermination within one (1) year of the original determination if, through his or her own investigation, he or she finds the original determination to be in error.

(B) The director shall promptly notify the parties to the review and redetermination of his or her decision by mailing the denial of redetermination to their last known addresses.

(C) The denial of an application for review and redetermination is final and conclusive as of the mailing date of the director's notification.

(3) A party to a review and redetermination under subdivision (d)(2) of this section may appeal from the determination or redetermination of the director by filing a petition with the clerk of the circuit court in the county of the party's residence, if the residence is in Arkansas, or the clerk of the circuit court of Pulaski County, Arkansas, within thirty (30) days of the mailing date of the director's notice of determination or redetermination.