2006 Massachusetts Code - Section 29D. Worksharing plan; approval; modification; revocation;benefits.

Section 29D. (a) As used in this section the following words shall, unless the context clearly requires otherwise, have the following meanings:

“Affected unit”, a specified plant, department, shift, or other definable unit consisting of not less than two employees to which an approved worksharing plan applies.

“Approved worksharing plan”, a plan of an employer under which there is a reduction in the number of hours worked by the employees in an affected unit, and the affected employees share the work remaining after the normal weekly hours of work are reduced.

“Employee”, any individual employed full-time or on a permanent part-time basis by any employer subject to this chapter and in employment subject thereto.

“Fringe benefits”, include, but are not limited to, health insurance, retirement benefits, paid vacation and holidays, sick leave, and similar advantages which are incidents of employment.

“Normal weekly hours of work”, the normal number of hours of work each week for an employee in an affected unit when that unit is operating on a full-time basis, not to exceed forty hours and not including overtime.

“Unemployment benefits” or “regular benefits”, benefits payable under this chapter other than worksharing benefits, reemployment assistance benefits or health insurance benefits.

“Worksharing benefits”, the benefits payable to employees in an affected unit under an approved worksharing plan.

“Worksharing employer”, an employer with an approved worksharing plan in effect.

(b) An employer wishing to participate in a worksharing program shall submit a written and signed worksharing plan to the commissioner for approval. The commissioner may approve a worksharing plan if the following criteria, and any other factors the commissioner deems relevant, are met:

(1) The plan identifies the affected unit or units to which it applies.

(2) The employees in the affected unit are identified by name, social security number, the normal weekly hours of work, proposed wage and hour reduction and any other information the commissioner deems necessary to carry out the provisions of this section.

(3) The normal weekly hours of work by employees in the affected unit are reduced by not less than ten per cent and not more than sixty per cent and the reduction in hours in each affected unit is spread equally among employees in the affected unit.

(4) The plan provides that health benefits, as defined in section 3(35) of the Employee Retirement Income Security Act of 1974, will continue to be provided to the employees in the affected units as though their normal weekly hours of work had not been reduced, provided that retirement benefits under a benefit pension plan, as defined in said section 3(35), will continue to be provided to the employees in the affected units on a pro-rated basis, and specifies the effect, if any, the reduction in the normal weekly hours of work will have on other fringe benefits provided by the employer.

(5) The plan certifies that the reduction in the normal weekly hours of work is in lieu of layoffs and states the reason for and expected duration of the work reduction. The plan shall not serve as a subsidy of seasonal employment during the off season, nor as a subsidy of temporary part time or intermittent employment.

(6) The written approval by the collective bargaining agent for each collective bargaining agreement for each affected unit is included in the plan.

(7) The plan specifies a beginning and ending date which shall be not more than twenty-six weeks from the beginning date.

(8) The plan contains an agreement by the employer to furnish all reports and information necessary for the administration of the plan and to permit access by the commissioner to all records necessary to verify and evaluate the plan.

(9) An employee’s participation in the plan shall not be precluded or limited by any particular definition of attachment to the employer, such as, length of employment.

(10) The plan applies to only full-time or permanent part-time employees. Seasonal employees may not participate in a worksharing plan.

(11) The plan certifies that the employer has paid all contributions, payments in lieu of contributions, interest or penalty charges due under this chapter.

(12) The plan meets all other criteria prescribed by the commissioner.

(c) The commissioner shall approve or reject a worksharing plan in writing within fifteen working days after its receipt. The commissioner’s rejection of the worksharing plan shall be final and shall not be appealable, but rejection shall not prevent an employer from submitting another plan for approval.

(d) An approved worksharing plan may be modified only with the approval of the commissioner. The worksharing employer shall notify the commissioner of any changes in the conditions of an approved plan within two working days. If the proposed changes meet the requirements for approval of a plan, the commissioner may approve the modifications. If the modifications do not meet the requirements for approval, the commissioner shall revoke the plan.

(e) The commissioner may revoke approval of a worksharing plan for good cause. The revocation order shall be in writing and shall specify the date the revocation is effective and the reasons for the revocation. Good cause for revocation shall include, but is not limited to, failure to comply with the assurances given in the plan, unreasonable revision of the productivity standards for the affected unit, conduct or occurrences tending to defeat the intent and effective operation of the plan, and violation of the criteria on which approval of the plan was based. Such action may be initiated at any time by the commissioner on his own motion, or at the request of any of the affected unit’s employees, or at the request of the appropriate collective bargaining agent. The revocation order shall be final and not appealable.

(f) At the end of the worksharing period provided in paragraph (7) of subsection (b), the worksharing employer may submit a new worksharing plan to the commissioner for approval.

(g) The provisions of section forty-seven shall apply to any information submitted in connection with an application for approval or modification of a worksharing plan, the implementation of an approved worksharing plan, or the payment of worksharing benefits. An employer shall also be liable for the repayment to the commissioner of any worksharing benefits improperly paid by the commissioner as a result of information the employer submitted to the commissioner in connection with the approval, modification or implementation of a worksharing plan which is substantially misleading or contains a material misrepresentation of fact. In addition thereto, a claimant shall be liable for the repayment to the commissioner of any worksharing benefits which were improperly paid due to the fault of the claimant. The commissioner may utilize any remedies provided by this chapter to recover worksharing benefits.

(h)(1) An individual shall be eligible to receive worksharing benefits, subsequent to serving a waiting period as prescribed by the commissioner, with respect to any week only if, in addition to meeting the other conditions of eligibility for regular benefits under this chapter which are not inconsistent with this section, the commissioner finds that (i) the individual is employed as a member of an affected unit under an approved worksharing plan in effect, and (ii) the individual is able to work and is available for the normal weekly hours of work with the worksharing employer. An otherwise eligible affected individual shall not be denied worksharing benefits for any week by reason of the application of provisions relating to availability for work, active search for work or applying for or accepting suitable work with other than the worksharing employer.

(2) An individual shall be deemed to be unemployed in any week for which remuneration is payable to him as an employee in an affected unit for less than the employee’s normal weekly hours of work as specified under the approved worksharing plan in effect for that week.

(3) An individual who is not eligible to receive unemployment benefits by reason of the application of paragraph (6) of subsection (d) of section twenty-nine shall not be eligible to receive worksharing benefits.

(i) The weekly worksharing benefit amount payable to an affected individual shall be the product of the regular weekly benefit amount, as defined in section twenty-nine, plus the allowance set forth in subsection (c) of section twenty-nine, multiplied by the percentage reduction in the individual’s normal weekly hours of work, rounded to the next lower full dollar amount. The weekly worksharing benefit amount shall not be reduced by reason of application of the provisions of subsection (b) of section twenty-nine to remuneration received from the worksharing employer.

If in any week an individual performs services for a worksharing employer and an employer other than the worksharing employer, the weekly worksharing benefit amount shall be reduced by the amount by which the aggregate remuneration received from the non-worksharing employer exceeds thirty per cent of the maximum benefit rate in effect.

(j) The total worksharing benefit amount payable to an affected individual during any benefit year shall not exceed the amount of total benefits calculated under subsection (a) of section thirty minus the amount of regular benefits payable to said individual under this chapter.

(k) An individual who has received all the worksharing benefits or the combined regular benefits and worksharing benefits available in a benefit year shall be considered an exhaustee for purposes of extended benefits, as provided under the provisions of section thirty A, and, if otherwise eligible under those provisions, shall be eligible to receive extended benefits.

(l) An individual who performs no services during a week for the worksharing employer and is otherwise eligible shall be paid benefits in accordance with the other provisions of this chapter.

(m) Claims for worksharing benefits shall be filed in the same manner as claims for other benefits under this chapter or as otherwise prescribed by the commissioner.

(n) Notwithstanding any other provision of this chapter relating to charges, all worksharing benefits shall be charged to the account of the worksharing employer. Benefits paid under this section shall be charged to the employer’s account in the same manner as regular benefits are charged, except that, if the employer’s account reserve percentage is negative as of the most recent computation date, the employer shall be charged and billed in accordance with the provisions of section fourteen A as if the employer had elected to make payments in lieu of contributions. Benefits paid under this section to employees of employers who have elected to make payments in lieu of contributions shall be charged in accordance with section fourteen A.

(o) Except where inconsistent with the provisions of this section, the provisions of this chapter, including the rules and regulations adopted under this chapter, shall apply to benefits under this section.