75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 342
 
                         Minority Report
 
                           B-Engrossed
 
                         House Bill 2201
                 Ordered by the Senate April 17
  Including House Amendments dated March 6 and Senate Minority
                Report Amendments dated April 17
 
Sponsored by nonconcurring members of the Senate Committee on
  Commerce and Workforce Development: Senators TELFER, GEORGE
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
 
  Changes effective date of election to exclude officers of
corporation from eligibility for unemployment insurance coverage
to first day of current calendar quarter or preceding calendar
quarter. Applies to elections of coverage by corporations
occurring on or after January 1, 2010.
    { - Establishes personal liability of certain officers,
employees, members or partners for amounts due under Employment
Department Law in case of default by employer. - }
   { +  Establishes personal liability for certain officers,
members or partners who are convicted of crime in connection with
default by employer for amounts due under Employment Department
Law.  Establishes personal liability for employees who are
convicted of theft in connection with default by employer. + }
 
                        A BILL FOR AN ACT
Relating to unemployment insurance administration; creating new
  provisions; and amending ORS 657.044, 657.552 and 657.681.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 657.044 is amended to read:
  657.044. (1) As used in this chapter, 'employment' does not
include service performed for:
  (a) A corporation by corporate officers who are directors of
the corporation, who have a substantial ownership interest in the
corporation and who are members of the same family if the
corporation elects not to provide coverage for those individuals.
The election shall be in writing and shall be effective on the
first day of the   { - calendar quarter - }   { + current
calendar quarter or of the calendar quarter preceding the
calendar quarter  + }in which the request was submitted.
  (b) A limited liability company by a member, including members
who are managers, as defined in ORS 63.001.
  (c) A limited liability partnership by a partner as described
in ORS chapter 67.
 
  (2) The provisions of this section do not apply to service
performed for:
  (a) A nonprofit employing unit;
  (b) This state;
  (c) A political subdivision of this state; or
  (d) An Indian tribe.
  (3) As used in this section, 'members of the same family '
means persons who are members of a family as parents,
stepparents, grandparents, spouses, sons-in-law,
daughters-in-law, brothers, sisters, children, stepchildren,
adopted children or grandchildren.
  SECTION 2.  { + Section 3 of this 2009 Act is added to and made
a part of ORS chapter 657. + }
  SECTION 3.  { + (1) In the case of default by an employer, as
provided in ORS 657.515, a person described in subsection (2) of
this section who, as an officer, member, partner or employee, is
under a duty to perform the actions required by employers under
this chapter shall be personally liable for amounts due under
this chapter.
  (2) This section applies to each person:
  (a) Who is:
  (A) An officer or employee of a corporation;
  (B) A member or employee of a limited liability company; or
  (C) A partner in or employee of a limited liability
partnership; and
  (b) Who is:
  (A) Other than an employee, a responsible party as described in
subsection (3) of this section who has been convicted of a crime
in connection with the default described in subsection (1) of
this section; or
  (B) An employee who is a responsible party as described in
subsection (3) of this section who has been convicted of theft in
connection with the default described in subsection (1) of this
section.
  (3) A responsible party is a person who, in connection with the
employer's business, including the default described in
subsection (1) of this section:
  (a) Managed debt;
  (b) Made or participated in making fiscal decisions;
  (c) Directed day-to-day business operations;
  (d) Signed checks;
  (e) Prepared and signed tax returns; or
  (f) Is a principal recorded on documents filed with the office
of the Secretary of State.
  (4) Each person described in subsection (2) of this section is
jointly and severally liable for amounts assessed under this
section.
  (5) If the Director of the Employment Department determines
that an amount is due under this section, the director shall
issue a notice of assessment to each person liable under this
section mailed to the person's last-known address of record with
the director.
  (6) If the director has reason to believe that a person liable
under this section is insolvent, the director may issue a
jeopardy assessment as provided by ORS 657.681 (4).
  (7) Amounts assessed under this section may be reviewed in the
manner provided by ORS 657.681 (5). + }
  SECTION 4. ORS 657.552 is amended to read:
  657.552. (1) Except in the case of failure without good cause
to file a return, fraud or intent to evade any provision of this
chapter or authorized   { - regulations - }  { +  rules + },
every notice of assessment shall be given within four years after
the last day of the month following the close of the calendar
quarter during which the contribution liability included in the
assessment accrued. An employer  { + or person liable under
 
section 3 of this 2009 Act  + }may waive this limitation period
or may consent to its extension.
  (2) In case of failure without good cause to file a return,
every notice of assessment shall be given within eight years
after the last day of the month following the close of the
calendar quarter during which the contribution liability included
in the assessment accrued. An employer  { + or person liable
under section 3 of this 2009 Act  + }may waive this limitation
period or may consent to its extension.
  (3)   { - No - }   { + An + } action or suit   { - shall - }
 { + may not + } be commenced to collect any amount of
contributions, interest or penalties due under assessment unless
such action or suit is commenced within three years from the date
of the assessment, except in the case of fraud or intent to evade
any provision of this chapter or authorized regulations, an
action or suit may be commenced at any time.
  (4) If the cause of action or suit accrues or has accrued
against any employer  { + or person liable under section 3 of
this 2009 Act  + }who is out of the state or concealed therein,
such action or suit may be commenced within three years after the
return of the employer  { + or person + } into the state, or the
time of the concealment of the employer  { + or person + } has
ended.
  SECTION 5. ORS 657.681 is amended to read:
  657.681. (1) If an employer files a report for the purpose of
determining the amount of contributions due under this chapter
but fails to pay contributions or interest, the Director of the
Employment Department or authorized representative may assess the
amount of contributions or interest due on the basis of the
information submitted and shall give written notice of the
assessment to the employer mailed to the  { + employer's + }
last-known address of record with the director. In the event that
such report is subsequently found to be incorrect additional
assessments may be made, subsection (5) of this section to the
contrary notwithstanding.
  (2) If an employer fails to file a report when required by the
director for the purpose of determining the amount of
contribution due under this chapter, the director or authorized
representative may make an estimate based upon any information of
the amount of wages paid for employment in the period or periods
for which no report was filed and upon the basis of such estimate
shall compute and assess the amount of employer contributions
payable by the employer. Written notice of the assessment  { + to
the employer + } shall be mailed to the  { + employer's + }
last-known address   { - of the employer - }  of record with the
director.
  (3) If the director or authorized representative is not
satisfied with a report made by an employer for the purpose of
determining the amount of contribution due under this chapter,
the director or authorized representative may compute the amount
required to be paid upon the basis of facts contained in the
report or upon the basis of any information obtainable and may
make an assessment of the amount of the deficiency. Written
notice of such deficiency assessment  { + to the employer + }
shall be mailed to the  { + employer's + } last-known address
 { - of the employer - }  of record with the director.
  (4) If the director or authorized representative has reason to
believe that an employer  { + or person liable under section 3 of
this 2009 Act  + }is insolvent, or that the collection of any
contributions will be jeopardized by delaying collection, the
director or authorized representative may thereupon make an
immediate assessment of the estimated amount of accrued
contributions, noting upon the assessment that it is a jeopardy
assessment levied under this subsection, and may proceed to
enforce collection immediately, but interest shall not begin to
accrue upon such contributions until the due date nor shall court
costs be taxed against such employer  { + or person liable under
section 3 of this 2009 Act  + }on any action to enforce
collection commenced prior to the due date. The director or
authorized representative may, in levying the assessment, demand
a bond or deposit of such security as is necessary to
 { - insure - }   { + ensure + } collection of the amount of such
assessment. Written notice of the assessment  { + to the employer
or person liable under section 3 of this 2009 Act + } shall be
mailed to the  { + employer's or person's + } last-known address
 { - of the employer - }  of record with the director.
  (5) All assessments provided for in this section shall finally
fix the amount of contributions due and payable unless the
employer  { + or person liable under section 3 of this 2009 Act
 + }shall within 20 days after the mailing of the notice of
assessment apply to the director for a hearing, or unless the
director or authorized representative on the motion of the
director or authorized representative reviews the same prior to a
decision of the administrative law judge thereon pursuant to
hearing. An employer  { + or person liable under section 3 of
this 2009 Act  + }who fails to apply for a hearing upon an
assessment within the time provided or, having applied, fails to
appear and be heard after due notice of such hearing, shall be
precluded from raising any defense to any action, suit or
proceeding brought by the director for the recovery of
contributions based upon such assessment which could have been
raised in the hearing. The amount of contributions so assessed
under this section shall be subject to the penalties and interest
provided by ORS 657.515 and 657.663.
  SECTION 6.  { + The amendments to ORS 657.044 by section 1 of
this 2009 Act apply to elections of coverage by corporations
occurring on or after January 1, 2010. + }
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