AN ACT to amend the Indiana Code concerning state and local administration and to make
SECTION 7, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2010]: Sec. 28. (a)
As used in The following definitions
apply throughout this section:
(1) "Ombudsman" refers to the small business ombudsman designated under IC 5-28-17-5.
(2) "Total estimated economic impact" means the annual economic impact of a rule on all regulated persons after the rule is fully implemented under subsection (g).
Indiana economic development corporation established by
IC 5-28-3-1: ombudsman:
(1) shall review a proposed rule that:
(A) imposes requirements or costs on small businesses (as defined in IC 4-22-2.1-4); and
(B) is referred to the
corporation ombudsman by an agency
under IC 4-22-2.1-5(c); and
(2) may review a proposed rule that imposes requirements or costs on businesses other than small businesses (as defined in IC 4-22-2.1-4).
After conducting a review under subdivision (1) or (2), the
ombudsman may suggest alternatives to reduce any regulatory burden
that the proposed rule imposes on small businesses or other businesses.
The agency that intends to adopt the proposed rule shall respond in
writing to the Indiana economic development corporation ombudsman
concerning the corporation's ombudsman's comments or suggested
alternatives before adopting the proposed rule under section 29 of this
(c) Subject to subsection (f) and not later than fifty (50) days before the public hearing required by section 26 of this chapter, an agency shall submit a proposed rule to the office of management and budget for a review under subsection (d) if the agency proposing the rule determines that the rule will have a total estimated economic impact greater than five hundred thousand dollars ($500,000) on all regulated persons. In determining the total estimated economic impact under this subsection, the agency shall consider any applicable information submitted by the regulated persons affected by the rule. To assist the office of management and budget in preparing the fiscal impact statement required by subsection (d), the agency shall submit, along with the proposed rule, the data used and assumptions made by the agency in determining the total estimated economic impact of the rule.
(d) Except as provided in subsection (e), before the adoption of the rule, and not more than forty-five (45) days after receiving a proposed rule under subsection (c), the office of management and budget shall
prepare, using the data and assumptions provided by the agency
proposing the rule, along with any other data or information available
to the office of management and budget, a fiscal impact statement
concerning the effect that compliance with the proposed rule will have
(1) the state; and
(2) all persons regulated by the proposed rule.
The fiscal impact statement must contain the total estimated economic impact of the proposed rule and a determination concerning the extent to which the proposed rule creates an unfunded mandate on a state agency or political subdivision. The fiscal impact statement is a public document. The office of management and budget shall make the fiscal impact statement available to interested parties upon request. The agency proposing the rule shall consider the fiscal impact statement as part of the rulemaking process and shall provide the office of management and budget with the information necessary to prepare the fiscal impact statement, including any economic impact statement prepared by the agency under IC 4-22-2.1-5. The office of management and budget may also receive and consider applicable information from the regulated persons affected by the rule in preparation of the fiscal impact statement.
(e) With respect to a proposed rule subject to IC 13-14-9:
(1) the department of environmental management shall give written notice to the office of management and budget of the proposed date of preliminary adoption of the proposed rule not less than sixty-six (66) days before that date; and
(2) the office of management and budget shall prepare the fiscal impact statement referred to in subsection (d) not later than twenty-one (21) days before the proposed date of preliminary adoption of the proposed rule.
(f) In determining whether a proposed rule has a total estimated economic impact greater than five hundred thousand dollars ($500,000), the agency proposing the rule shall consider the impact of the rule on any regulated person that already complies with the standards imposed by the rule on a voluntary basis.
(g) For purposes of this section, a rule is fully implemented after:
(1) the conclusion of any phase-in period during which:
(A) the rule is gradually made to apply to certain regulated persons; or
(B) the costs of the rule are gradually implemented; and
(2) the rule applies to all regulated persons that will be affected by the rule.
qualified by knowledge or experience with respect to each rule. Subject
to subsection (f):
(1) in the case of a proposed rule, the notice of intent to adopt the rule published under section 23 of this chapter; or
(2) in the case of a rule proposed by the department of environmental management or any of the boards (as defined in IC 13-11-2-18), the notice published under IC 13-14-9-3 or the findings published under IC 13-14-9-8(b)(1), whichever applies;
must include the name, address, telephone number, and electronic mail address of the small business coordinator for the proposed rule, the name, address, telephone number, and electronic mail address of the small business ombudsman designated under IC 5-28-17-5, and a statement of the resources available to regulated entities through the small business ombudsman designated under IC 5-28-17-5. Subject to subsection (f), in the case of a rule finally adopted, the final rule, as published in the Indiana Register, must include the name, address, telephone number, and electronic mail address of the coordinator.
(f) This subsection applies to a rule adopted by the department of environmental management or any of the boards (as defined in IC 13-11-2-18) under IC 13-14-9. Subject to subsection (g), the department shall include in the notice provided under IC 13-14-9-3 or in the findings published under IC 13-14-9-8(b)(1), whichever applies, and in the publication of the final rule in the Indiana Register:
(1) a statement of the resources available to regulated entities through the technical and compliance assistance program established under IC 13-28-3
(2) the name, address, telephone number, and electronic mail address of the ombudsman designated under IC 13-28-3-2;
(3) if applicable, a statement of:
(A) the resources available to small businesses through the small business stationary source technical assistance program established under IC 13-28-5; and
(B) the name, address, telephone number, and electronic mail address of the ombudsman for small business designated under IC 13-28-5-2(3); and
(4) the information required by subsection (e).
The coordinator assigned to the rule under subsection (e) shall work with the ombudsman described in subdivision (2) and the office of voluntary compliance established by IC 13-28-1-1 to coordinate the provision of services required under subsection (h) and IC 13-28-3. If applicable, the coordinator assigned to the rule under subsection (e)
shall work with the ombudsman referred to in subdivision (3)(B) to
coordinate the provision of services required under subsection (h) and
(g) If the notice provided under IC 13-14-9-3 is not published as allowed by IC 13-14-9-7, the department of environmental management shall publish in the notice provided under IC 13-14-9-4 the information that subsection (f) would otherwise require to be published in the notice under IC 13-14-9-3. If neither the notice under IC 13-14-9-3 nor the notice under IC 13-14-9-4 is published as allowed by IC 13-14-9-8, the department of environmental management shall publish in the commissioner's written findings under IC 13-14-9-8(b) the information that subsection (f) would otherwise require to be published in the notice under IC 13-14-9-3.
(h) The coordinator assigned to a rule under subsection (e) shall serve as a liaison between the agency and any small business subject to regulation under the rule. The coordinator shall provide guidance to small businesses affected by the rule on the following:
(1) Any requirements imposed by the rule, including any reporting, record keeping, or accounting requirements.
(2) How the agency determines or measures compliance with the rule, including any deadlines for action by regulated entities.
(3) Any penalties, sanctions, or fines imposed for noncompliance with the rule.
(4) Any other concerns of small businesses with respect to the rule, including the agency's application or enforcement of the rule in particular situations. However, in the case of a rule adopted under IC 13-14-9, the coordinator assigned to the rule may refer a small business with concerns about the application or enforcement of the rule in a particular situation to the ombudsman designated under IC 13-28-3-2 or, if applicable, under IC 13-28-5-2(3).
(i) The coordinator assigned to a rule under subsection (e) shall provide guidance under this section in response to questions and concerns expressed by small businesses affected by the rule. The coordinator may also issue general guidelines or informational pamphlets to assist small businesses in complying with the rule. Any guidelines or informational pamphlets issued under this subsection shall be made available:
(1) for public inspection and copying at the offices of the agency under IC 5-14-3; and
(2) electronically through electronic gateway access.
(j) The coordinator assigned to a rule under subsection (e) shall
keep a record of all comments, questions, and complaints received
from small businesses with respect to the rule. The coordinator shall
deliver the record, along with any accompanying documents submitted
by small businesses, to the director:
(1) not later than ten (10) days after the date on which the rule is submitted to the publisher under section 35 of this chapter; and
(2) before July 15 of each year during which the rule remains in effect.
The coordinator and the director shall keep confidential any information concerning a small business to the extent that the information is exempt from public disclosure under IC 5-14-3-4.
(k) Not later than November 1 of each year, the director shall:
(1) compile the records received from all of the agency's coordinators under subsection (j);
(2) prepare a report that sets forth:
(A) the number of comments, complaints, and questions received by the agency from small businesses during the most recent state fiscal year, categorized by the subject matter of the rules involved;
(B) the number of complaints or questions reported under clause (A) that were resolved to the satisfaction of the agency and the small businesses involved;
(C) the total number of staff serving as coordinators under this section during the most recent state fiscal year;
(D) the agency's costs in complying with this section during the most recent state fiscal year; and
(E) the projected budget required by the agency to comply with this section during the current state fiscal year; and
(3) deliver the report to the legislative council in an electronic format under IC 5-14-6 and to the
Indiana economic development
corporation established small business ombudsman designated
by IC 5-28-3. IC 5-28-17-5.
or less. has the meaning set forth in IC 5-28-2-6.
must reflect in a fair and balanced way the amount of
(4) A requirement that the applicant will pay back to the state the incentive that has been received by the applicant if the applicant moves or closes.
rulemaking actions that affect small businesses.
(6) Coordinate with the ombudsmen designated under IC 13-28-3-2 and the office of voluntary compliance established by IC 13-28-1-1 to coordinate the provision of services required under IC 4-22-2-28.1 and IC 13-28-3.
(7) Prepare written and electronic information for periodic distribution to small businesses describing the small business services provided by coordinators (as defined in IC 4-3-22-16) and work with the office of technology established by IC 4-13.1-2-1 to place information concerning the availability of these services on state Internet web sites that the small business ombudsman or a state agency determines are most likely to be visited by small business owners and managers.
(8) Assist in training agency coordinators that will be assigned to rules under IC 4-22-2-28.1(e).
(9) Investigate and attempt to resolve any matter regarding compliance by a small business with a law, rule, or policy administered by a state agency, either as a party to a proceeding or as a mediator.
State agencies shall cooperate with the small business ombudsman to carry out the purpose of this section. The department of state revenue and the department of workforce development shall establish a program to distribute the information described in subdivision (7) to small businesses that are required to file returns or information with these state agencies.
seek a refund or arrange other methods of reclaiming the grant or loan
from the recipient. If the corporation does seek a refund or otherwise
reclaims a grant or loan from the recipient under this section, the
amount of the refund or reclaimed part must be in proportion to the
degree of default by the recipient as determined by the corporation.
(c) Subsection (b) does not apply to a recipient of a grant or loan if:
(1) the grant or loan has been disbursed on a pro rata basis; and
(2) in the judgment of the corporation, the recipient's performance in relation to the recipient's performance goals equals or exceeds the ratio of the amount of the recipient's actual benefit from the grant or loan to the total amount of the grant or loan originally contemplated in the grant or loan award.
(d) If the incentive granted by the corporation was awarded after March 31, 2010, the corporation shall seek a refund or arrange other methods of reclaiming the value of the incentive granted by the corporation from the recipient. The amount of the refund or reclaimed part must be in proportion to the degree of default by the recipient as determined by the corporation.
granted by the corporation. The report required by this section
(1) the overall compliance with the terms and conditions of incentives provided; and
(2) penalties imposed for failure to comply with the terms and conditions of incentives provided.
The report must also be submitted to the general assembly in an electronic format under IC 5-14-6.
(b) Upon request, the corporation shall make available:
(1) information specifying each person's compliance with its incentive agreement and any incentive that had to be reduced or paid back as a result of noncompliance with an incentive agreement;
(2) information stating, for each incentive recipient, the total incentive provided for each job created, computed from the date the incentive is granted through June 30 of the year of the report;
(3) information concerning all waivers or modifications under section 8 of this chapter; and
(4) information describing all hearings and determinations under IC 5-28-6-6.
not a new Indiana business, or does not meet, or is unlikely to meet,
any other requirements for the tax credit provided by this chapter,
the IEDC shall notify the applicant of the IEDC's determination.
(f) The IEDC may not issue a certificate of approval under this chapter after December 31, 2012.
Sec. 10. (a) Each taxable year, a new Indiana business is entitled to a tax credit against the new Indiana business's state tax liability for the taxable year in the amount specified by section 11 of this chapter.
(b) The tax credit provided by subsection (a) is based on a period not exceeding twenty-four (24) consecutive calendar months during which the new Indiana business meets the conditions of this chapter. The period begins on the first day of the month following the month in which the new Indiana business is approved by the IEDC under this chapter. The period ends on the final day of:
(1) the twenty-fourth consecutive calendar month that the new Indiana business complies with the conditions of this chapter; or
(2) the month in which the new Indiana business ceases to comply with the conditions of this chapter;
whichever month occurs first.
Sec. 11. For each taxable year, the amount of the tax credit under this chapter is equal to ten percent (10%) of the wages paid by the new Indiana business to qualified employees during the calendar months of the period specified in section 10(b) of this chapter that are included in the taxable year.
Sec. 12. If a pass through entity does not have state tax liability against which a tax credit may be applied, a shareholder, partner, fiduciary, or member of the pass through entity is entitled to a tax credit equal to:
(1) the tax credit to which the pass through entity would be entitled under this chapter for the taxable year if the pass through entity were a taxpayer; multiplied by
(2) the percentage of the pass through entity's distributive income to which the shareholder, partner, fiduciary, or member is entitled.
Sec. 13. (a) If the credit provided by this chapter exceeds the taxpayer's state tax liability for the taxable year for which the credit is first claimed, the excess may be carried forward to succeeding taxable years and used as a credit against the taxpayer's state tax liability during those taxable years. Each time that the credit is carried forward to a succeeding taxable year, the
credit is to be reduced by the amount that was used as a credit
during the immediately preceding taxable year. The credit
provided by this chapter may be carried forward and applied to
succeeding taxable years for not more than nine (9) taxable years
following the first year the credit is claimed.
(b) A taxpayer is not entitled to any carryback or refund of any unused credit.
Sec. 14. To qualify for a tax credit under this chapter, a taxpayer must claim the tax credit on the taxpayer's annual state tax return or returns in the manner prescribed by the department. The taxpayer shall maintain the records required by the department for the period specified by the department to substantiate the taxpayer's eligibility for the credit.
(3) (4) For purposes of IC 12-17.6, the meaning set forth in
by P.L.182-2009(ss) for TANF, augmentation is allowed (as defined
in P.L.182-2009(ss), SECTION 1) from any state fund that is not
restricted by federal law or the terms of a contract, grant, loan,
gift, or bequest solely for the purpose of providing state match
money for the program. The amount of augmentation from a fund
other than the state general fund that is not expended or
unencumbered before the end of a state fiscal year reverts to and
is available for the purposes of the fund from which the
augmentation came. Notwithstanding IC 4-9.1-1-7, IC 4-12-1-12,
IC 4-13-2-23, or another law, the money may not be transferred,
assigned, or reassigned for another purpose.
Sec. 5. On or before June 30, 2010, and at the end of each quarter thereafter, the secretary shall submit to the budget committee a report describing the secretary's progress in implementing this chapter, including a description of the sources of state match money used for the program.
Sec. 6. This chapter expires December 31, 2013.
with and enforcing state laws concerning misclassified
employees and to recoup contributions owed, depending on
the level of culpability.
(D) Record keeping requirements for contractors, including any records necessary for the department to investigate alleged violations concerning misclassification of employees.
(E) Investigative procedures.
(2) Apply to public works and private work projects for the construction industry (as described in IC 4-13.5-1-1(3)), including demolition.
(3) Apply to any contractor that engages in construction and is authorized to do business in Indiana.
(4) Provide a remedy for an employer or a misclassified employee in response to:
(A) any retaliation that occurs as the result of an investigation or a complaint; and
(B) any complaints that the department determines are frivolous or that are filed for the purpose of harassment.
(5) Provide that in carrying out this chapter the department has the same inspection, investigative, and enforcement powers that the department has in enforcing the labor laws of this state, including powers described in IC 22-1-1.
(c) The guidelines and procedures may include other elements as determined by the department.
(d) The department shall exempt the following from the guidelines and procedures developed under this chapter:
(1) Residential construction of a single family home or duplex if the builder builds less than twenty-five (25) units each year.
(2) An owner-operator that provides a motor vehicle and the services of a driver under a written contract that is subject to IC 8-2.1-24-23, 45 IAC 16-1-13, or 49 CFR 376, to a motor carrier.
Sec. 3. In developing the guidelines and procedures under this chapter, the department shall use:
(1) the definition of "employee" used in Section 3401(c) of the Internal Revenue Code; and
(2) the following factors used by the Internal Revenue Service to determine whether a worker is an independent contractor:
(A) Instructions. A worker who is required to comply with other persons' instructions about when, where, and how he or she is to work is ordinarily an employee. This control
factor is present if the person or persons for whom the
services are performed have the right to require
compliance with instructions. See, for example, Rev. Rul.
68-598, 1968-2 C.B. 464, and Rev. Rul. 66-381, 1966-2 C.B.
(B) Training. Training a worker by requiring an experienced employee to work with the worker, by corresponding with the worker, by requiring the worker to attend meetings, or by using other methods, indicates that the person or persons for whom the services are performed want the services performed in a particular method or manner. See Rev. Rul. 70-630, 1970-2 C.B. 229.
(C) Integration. Integration of the worker's services into the business operations generally shows that the worker is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the workers who perform those services must necessarily be subject to a certain amount of control by the owner of the business. See United States v. Silk, 331 U.S. 704 (1947), 1947-2 C.B. 167.
(D) Services rendered personally. If the services must be rendered personally, presumably the person or persons for whom the services are performed are interested in the methods used to accomplish the work as well as in the results. See Rev. Rul. 55-695, 1955-2 C.B. 410.
(E) Hiring, supervising, and paying assistants. If the person or persons for whom the services are performed hire, supervise, and pay assistants, that factor generally shows control over the workers on the job. However, if one (1) worker hires, supervises, and pays the other assistants under a contract under which the worker agrees to provide materials and labor and under which the worker is responsible only for the attainment of a result, this factor indicates an independent contractor status. Compare Rev. Rul. 63-115, 1963-1 C.B. 178, with Rev. Rul. 55-593 1955-2 C.B. 610.
(F) Continuing relationship. A continuing relationship between the worker and the person or persons for whom the services are performed indicates that an employer-employee relationship exists. A continuing relationship may exist where work is performed at
frequently recurring although irregular intervals. See
United States v. Silk.
(G) Set hours of work. The establishment of set hours of work by the person or persons for whom the services are performed is a factor indicating control. See Rev. Rul. 73-591, 1973-2 C.B. 337.
(H) Full time required. If the worker must devote substantially full time to the business of the person or persons for whom the services are performed, such person or persons have control over the amount of time the worker spends working and impliedly restrict the worker from doing other gainful work. An independent contractor on the other hand, is free to work when and for whom he or she chooses. See Rev. Rul. 56-694, 1956-2 C.B. 694.
(I) Doing work on employer's premises. If the work is performed on the premises of the person or persons for whom the services are performed, that factor suggests control over the worker, especially if the work could be done elsewhere. Rev. Rul. 56-660, 1956-2 C.B. 693. Work done off the premises of the person or persons receiving the services, such as at the office of the worker, indicates some freedom from control. However, this fact by itself does not mean that the worker is not an employee. The importance of this factor depends on the nature of the service involved and the extent to which an employer generally would require that employees perform such services on the employer's premises. Control over the place of work is indicated when the person or persons for whom the services are performed have the right to compel the worker to travel a designated route, to canvass a territory within a certain time, or to work at specific places as required. See Rev. Rul. 56-694.
(J) Order of sequence set. If a worker must perform services in the order or sequence set by the person or persons for whom the services are performed, that factor shows that the worker is not free to follow the worker's own pattern of work but must follow the established routines and schedules of the person or persons for whom the services are performed. Often, because of the nature of an occupation, the person or persons for whom the services are performed do not set the order of the services or set the order infrequently. It is sufficient to show control,
however, if such person or persons retain the right to do
so. See Rev. Rul. 56-694.
(K) Oral or written reports. A requirement that the worker submit regular or written reports to the person or persons for whom the services are performed indicates a degree of control. See Rev. Rul. 70-309, 1970-1 C.B. 199, and Rev. Rul. 68-248, 1968-1 C.B. 431.
(L) Payment by hour, week, month. Payment by the hour, week, or month generally points to an employer-employee relationship, if this method of payment is not just a convenient way of paying a lump sum agreed upon as the cost of a job. Payment made by the job or on a straight commission generally indicates that the worker is an independent contractor. See Rev. Rul. 74-389, 1974-2 C.B. 330.
(M) Payment of business and traveling expenses. If the person or persons for whom the services are performed ordinarily pay the worker's business or traveling expenses or business and traveling expenses, the worker is ordinarily an employee. An employer, to be able to control expenses, generally retains the right to regulate and direct the worker's business activities. See Rev. Rul. 55-144, 1955-1 C.B. 483.
(N) Furnishing of tools and materials. The fact that the person or persons for whom the services are performed furnish significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship. See Rev. Rul. 71-524, 1971-2 C.B. 346.
(O) Significant investment. If the worker invests in facilities that are used by the worker in performing services and are not typically maintained by employees (such as the maintenance of an office rented at fair value from an unrelated party), that factor tends to indicate that the worker is an independent contractor. On the other hand, lack of investment in facilities indicates dependence on the person or persons for whom the services are performed for such facilities and, accordingly, the existence of an employer-employee relationship. See Rev. Rul. 71-524. Special scrutiny is required with respect to certain types of facilities, such as home offices.
(P) Realization of profit or loss. A worker who can realize a profit or suffer a loss as a result of the worker's services
(in addition to the profit or loss ordinarily realized by
employees) is generally an independent contractor, but the
worker who cannot is an employee. See Rev. Rul. 70-309.
For example, if the worker is subject to a real risk of
economic loss due to significant investments or a bona fide
liability for expenses, such as salary payments to unrelated
employees, that factor indicates that the worker is an
independent contractor. The risk that a worker will not
receive payment for his or her services, however, is
common to both independent contractors and employees
and thus does not constitute a sufficient economic risk to
support treatment as an independent contractor.
(Q) Working for more than one (1) firm at a time. If a worker performs more than de minimis services for a multiple of unrelated persons or firms at the same time, that factor generally indicates that the worker is an independent contractor. See Rev. Rul. 70-572, 1970-2 C.B. 221. However, a worker who performs services for more than one (1) person may be an employee of each of the persons, especially where such persons are part of the same service arrangement.
(R) Making service available to general public. The fact that a worker makes his or her services available to the general public on a regular and consistent basis indicates an independent contractor relationship. See Rev. Rul. 56-660.
(S) Right to discharge. The right to discharge a worker is a factor indicating that the worker is an employee and the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes the worker to obey the employer's instructions. An independent contractor, on the other hand, cannot be fired so long as the independent contractor produces a result that meets the contract specifications. Rev. Rul. 75-41, 1975-1 C.B. 323.
(T) Right to terminate. If the worker has the right to end his or her relationship with the person for whom the services are performed at any time he or she wishes without incurring liability, that factor indicates an employer-employee relationship. See Rev. Rul. 70-309.
(U) Any other guidelines under IC 22-3-6-1(b) and IC 22-3-7-9(b)(5).
in a calendar year to an individual by an employer or the
employer's predecessor for employment during a calendar year
that begins after December 31,
unless that part of the remuneration is subject to a tax under a federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund. For the purposes of this subdivision, the term "employment" shall include service constituting employment under any employment security law of any state or of the federal government. However, nothing in this subdivision shall be taken as an approval or disapproval of any related federal legislation.
(2) The amount of any payment (including any amount paid by an employer for insurance or annuities or into a fund to provide for any such payment) made to, or on behalf of, an individual or any of the individual's dependents under a plan or system established by an employer which makes provision generally for individuals performing service for it (or for such individuals generally and their dependents) or for a class or classes of such individuals (or for a class or classes of such individuals and their dependents) on account of:
(B) sickness or accident disability;
(C) medical or hospitalization expenses in connection with sickness or accident disability; or
(3) The amount of any payment made by an employer to an individual performing service for it (including any amount paid by an employer for insurance or annuities or into a fund to provide for any such payment) on account of retirement.
(4) The amount of any payment on account of sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability made by an employer to, or on behalf of, an individual performing services for it and after the expiration of six (6) calendar months following the last calendar month in which the individual performed services for such employer.
(5) The amount of any payment made by an employer to, or on behalf of, an individual performing services for it or to the individual's beneficiary:
(A) from or to a trust exempt from tax under Section 401(a) of the Internal Revenue Code at the time of such payment unless such payment is made to an individual performing services for
the trust as remuneration for such services and not as a
beneficiary of the trust; or
(B) under or to an annuity plan which, at the time of such payments, meets the requirements of Section 401(a)(3), 401(a)(4), 401(a)(5), and 401(a)(6) of the Internal Revenue Code.
(6) Remuneration paid in any medium other than cash to an individual for service not in the course of the employer's trade or business.
(7) The amount of any payment (other than vacation or sick pay) made to an individual after the month in which the individual attains the age of sixty-five (65) if the individual did not perform services for the employer in the period for which such payment is made.
(8) The payment by an employer (without deduction from the remuneration of the employee) of the tax imposed upon an employee under Sections 3101 et seq. of the Internal Revenue Code (Federal Insurance Contributions Act).
Wage and Hour Law, 29 U.S.C. 201 et seq.);
(12) for a week in which a payment is actually received by an individual, payments made by an employer to an individual who accepts an offer from the employer in connection with a layoff or a plant closure; or
(13) except as provided in subsection (c)(2), the part of a payment made by an employer to an individual who accepts an offer from the employer in connection with a layoff or a plant closure if that part is attributable to a week and the week:
(A) occurs after an individual receives the payment; and
(B) was used under the terms of a written agreement to compute the payment.
(b) Deductible income shall not include the first three dollars ($3), or twenty percent (20%) of the claimant's weekly benefit amount rounded to the next lowest dollar, whichever is the larger, of remuneration paid or payable to an individual with respect to any week by other than the individual's base period employer or employers.
(c) For the purpose of deductible income only, remuneration for services from employing units does not include:
(1) bonuses, gifts, or prizes awarded to an employee by an employing unit; or
(2) compensation made under a valid negotiated contract or agreement in connection with a layoff or plant closure, without regard to how the compensation is characterized by the contract or agreement.
(d) Deductible income does not include a supplemental unemployment insurance benefit made under a valid negotiated contract or agreement.
(e) Deductible income does not include any payments made to an individual by a court system under a summons for jury service.
and IC 22-4-37-3.
the deadlines was for excusable cause. The department shall give
written notice to the employer before this additional condition or
requirement shall apply.
(d) This subsection applies after December 31,
2009. 2010. In
addition to the conditions and requirements set forth and provided in
subsection (b)(2)(A) and (b)(2)(B), an employer's rate shall not be less
than twelve percent (12%) is equal to the sum of the employer's
contribution rate determined under this article plus two percent
(2%) unless all required contributions and wage reports have been
filed within thirty-one (31) days following the computation date and all
contributions, penalties, and interest due and owning owing by the
employer or the employer's predecessor for periods before and
including the computation date have been paid:
(1) within thirty-one (31) days following the computation date; or
(2) within ten (10) days after the department has given the employer a written notice by registered mail to the employer's last known address of:
(A) the delinquency; or
(B) failure to file the reports;
whichever is the later date. The board or the board's designee may waive the imposition of rates under this subsection if the board finds the employer's failure to meet the deadlines was for excusable cause. The department shall give written notice to the employer before this additional condition or requirement shall apply.
(e) However, if the employer is the state or a political subdivision of the state or any instrumentality of a state or a political subdivision, or any instrumentality which is wholly owned by the state and one (1) or more other states or political subdivisions, the employer may contribute at a rate of:
(1) one percent (1%), before January 1,
2010; 2011; or
(2) one and six-tenths percent (1.6%), after December 31,
until it has been subject to this article throughout the thirty-six (36) consecutive calendar months immediately preceding the computation date.
(f) On the computation date every employer who had taxable wages in the previous calendar year shall have the employer's experience account charged with the amount determined under the following formula:
STEP ONE: Divide:
(A) the employer's taxable wages for the preceding calendar year; by
determination date is divided by the total payroll of all subject
employers for the immediately preceding calendar year. Schedules A
through I appearing on the line opposite the fund ratio in the schedule
below are applicable in determining and assigning each employer's
contribution rate for the calendar year immediately following the
determination date. For purposes of this subsection, "total payroll"
means total remuneration reported by all contributing employers as
required by this article and does not include the total payroll of any
employer who elected
or is required to become liable for payments in
lieu of contributions (as defined in IC 22-4-2-32). For purposes of this
subsection, "subject employers" means those employers who are
subject to contribution.
SECTION 15, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JANUARY 1, 2010 (RETROACTIVE)]: Sec. 3.5. (a) For calendar
2009, 2010, if the conditions of section 2 of this chapter are
met, the rate of contributions shall be determined and assigned, with
respect to each calendar year, to employers whose accounts have a
credit balance and who are therefore eligible according to each
employer's credit reserve ratio. Each employer shall be assigned the
contribution rate appearing in the applicable schedule A through I on
the line opposite the employer's credit reserve ratio as set forth in the
rate schedule below:
RATE SCHEDULE FOR ACCOUNTS
WITH CREDIT BALANCES
When the Credit Reserve Ratio Is:
As But Rate Schedules
Much Less (%)
As Than A B C D E
3.00 0.75 0.70 0.70 0.60 0.50
2.80 3.00 1.00 0.90 0.90 0.80 0.70
2.60 2.80 1.30 1.20 1.10 1.00 0.90
2.40 2.60 1.60 1.50 1.40 1.30 1.20
2.20 2.40 1.90 1.80 1.70 1.50 1.40
2.00 2.20 2.20 2.00 1.90 1.80 1.60
1.80 2.00 2.50 2.30 2.20 2.00 1.80
1.60 1.80 2.80 2.60 2.40 2.20 2.00
1.40 1.60 3.10 2.90 2.70 2.50 2.30
1.20 1.40 3.40 3.20 3.00 2.70 2.50
1.00 1.20 3.70 3.40 3.20 3.00 2.70
0.80 1.00 4.00 3.70 3.50 3.20 2.90
0.60 0.80 4.30 4.00 3.70 3.40 3.10
0.40 0.60 4.60 4.30 4.00 3.70 3.40
0.20 0.40 4.90 4.60 4.30 3.90 3.60
0.00 0.20 5.20 4.80 4.50 4.20 3.80
RATE SCHEDULE FOR ACCOUNTS
WITH CREDIT BALANCES
When the Credit Reserve Ratio Is:
As But Rate Schedules
Much Less (%)
As Than F G H I
3.00 0.40 0.40 0.30 0.00
2.80 3.00 0.60 0.50 0.40 0.00
2.60 2.80 0.80 0.70 0.60 0.10
2.40 2.60 1.10 1.00 0.90 0.10
on any normal work day of the week the individual shall be eligible to
receive benefits with respect to such week reduced by one-third (1/3)
of the individual's weekly benefit amount for each day of such inability
to work or unavailability for work.
(c) For the purpose of this article, unavailability for work of an individual exists in, but is not limited to, any case in which, with respect to any week, it is found:
(1) that such individual is engaged by any unit, agency, or instrumentality of the United States, in charge of public works or assistance through public employment, or any unit, agency, or instrumentality of this state, or any political subdivision thereof, in charge of any public works or assistance through public employment;
(2) that such individual is in full-time active military service of the United States, or is enrolled in civilian service as a conscientious objector to military service;
(3) that such individual is suspended for misconduct in connection with the individual's work; or
(4) that such individual is in attendance at a regularly established public or private school during the customary hours of the individual's occupation or is in any vacation period intervening between regular school terms during which the individual is a student. However, this subdivision does not apply to any individual who is attending a regularly established school, has been regularly employed and upon becoming unemployed makes an effort to secure full-time work and is available for suitable full-time work with the individual's last employer, or is available for any other full-time employment deemed suitable.
(d) Notwithstanding any other provisions in this section or IC 22-4-15-2, no otherwise eligible individual shall be denied benefits for any week because the individual is in training with the approval of the department, nor shall such individual be denied benefits with respect to any week in which the individual is in training with the approval of the department by reason of the application of the provisions of this section with respect to the availability for work or active search for work or by reason of the application of the provisions of IC 22-4-15-2 relating to failure to apply for, or the refusal to accept, suitable work. The department shall by rule prescribe the conditions under which approval of such training will be granted.
(e) Notwithstanding subsection (b), (c), or (d), or IC 22-4-15-2, an otherwise eligible individual shall not be denied benefits for any week or determined not able, available, and actively seeking work,
because the individual is responding to a summons for jury service.
The individual shall:
(1) obtain from the court proof of the individual's jury service; and
(2) provide to the department, in the manner the department prescribes by rule, proof of the individual's jury service.
may not pay the individual benefits and shall refer the individual's
claim to the department's unemployment claims compliance center for
investigation. The department shall provide a written notice to the
individual who filed the claim that the individual's claim is being
referred to the unemployment claims compliance center, including the
reason for the referral.
(c) After receiving a claim from the department, the unemployment
claims compliance center shall contact the separating employer that
provided information that does not match information provided by the
individual making the claim to obtain information about the claim that
is accurate and sufficient for the department to determine whether the
individual is eligible for benefits. The center shall also obtain from the
employer the name and address of a person to receive without delay
notices served on the employer concerning the claim.
(d) Except as provided in subsection (e), the department may not pay
the individual benefits under this article as long as the discrepancy
between the information provided by the individual and the information
provided by the individual's separating employer is unresolved. If the
information provided by an individual and the information provided by
the individual's separating employer does not match, the department
shall notify both the separating employer and the individual that they
have forty-eight (48) hours to resolve the discrepancy. If the
discrepancy is not resolved at the end of the forty-eighth hour, the
department shall use the information provided by the employer to
determine the individual's eligibility for benefits.
(e) If the employer does not respond to the inquiry from the
unemployment claims compliance center within five (5) days after the
date of the inquiry, the center shall report to the department that the
employer has not responded, and the department shall use the
information provided by the individual to determine the individual's
eligibility for benefits.
(f) (b) After the department makes a determination concerning the
individual's eligibility for benefits, The department shall promptly
furnish each employer in the base period whose experience or
reimbursable account is potentially chargeable with benefits to be paid
to such individual with a notice in writing of the employer's benefit
liability. The notice shall contain the date, the name and Social Security
account number of the individual, the ending date of the individual's
base period, and the week ending date of the first week of the
individual's benefit period. the time by which the employer is required
to respond to the notice, and complete information about the rules of
evidence and standards of proof that the department will apply to
determine the validity of a claim, if an employer disputes the claim.
The notice shall further contain information as to the proportion of
benefits chargeable to the employer's experience or reimbursable
account in ratio to the earnings of such individual from such employer.
Unless the employer within ten (10) days after such notice of benefit
liability was mailed to the employer's last known address, or otherwise
delivered to the employer, asks a hearing thereon before an
administrative law judge, such determination shall be final and benefits
paid shall be charged in accordance therewith.
(g) (c) An employing unit, including an employer, having
knowledge of any facts which may affect an individual's eligibility or
right to waiting period credits or benefits, shall notify the department
of such facts within ten (10) days after the mailing of notice that a
former employee has filed an initial or additional claim for benefits on
a form prescribed by the department.
(h) (d) If, after the department determines that additional
information is necessary to make a determination under this chapter:
(1) the department makes a request in writing for additional information from an employing unit, including an employer, on a form prescribed by the department; and
(2) the employing unit fails to respond within ten (10) days after the date the request is
delivered mailed to the employing unit;
the department shall make
the determination a decision with the
(i) (e) If:
(1) an employer
subsequently obtains a determination by the
department that the employee is not eligible for benefits; appeals
an original determination granting benefits to a claimant and
the determination is reversed on appeal; and
determination decision to reverse the determination is
at least in part based on information that the department requested
from the employer under subsection (h), (d), but which the
employer failed to provide within ten (10) days after the
department's request was delivered mailed to the employer;
the employer's experience account shall be charged an amount equal to fifty percent (50%) of the benefits paid to the employee to which the employee was not entitled and for which the employer's experience account may be charged.
(j) (f) If:
(1) the employer's experience account is charged under subsection
(i); (e); and
(2) the employee repays all or a part of the benefits on which the
charge under subsection
(i) (e) is based;
the employer shall receive a credit to the employer's experience account that is equal to the amount of the employee's repayment up to fifty percent (50%) of the amount charged to the employer's experience account under subsection
(k) (g) In addition to the foregoing determination of insured status
by the department, the deputy shall, throughout the benefit period,
determine the claimant's eligibility with respect to each week for which
the claimant claims waiting period credit or benefit rights, the validity
of the claimant's claim therefor, and the cause for which the claimant
left the claimant's work, or may refer such claim to an administrative
law judge who shall make the initial determination with respect thereto
in accordance with the procedure in section 3 of this chapter.
(l) (h) In cases where the claimant's benefit eligibility or
disqualification is disputed, the department shall promptly notify the
claimant and the employer or employers directly involved or connected
with the issue raised as to the validity of such claim, the eligibility of
the claimant for waiting period credit or benefits, or the imposition of
a disqualification period or penalty, or the denial thereof, and of the
cause for which the claimant left the claimant's work, of such
determination and the reasons thereof.
(m) (i) Except as otherwise hereinafter provided in this section
regarding parties located in Alaska, Hawaii, and Puerto Rico, unless
the claimant or such employer, within ten (10) days after the
notification required by subsection (k) (h), was mailed to the claimant's
or the employer's last known address or otherwise delivered to the
claimant or the employer, asks for a hearing before an administrative
law judge thereon, such decision shall be final and benefits shall be
paid or denied in accordance therewith.
(n) (j) For a notice of disputed administrative determination or
decision mailed or otherwise delivered to the claimant or employer
either of whom is located in Alaska, Hawaii, or Puerto Rico, unless the
claimant or employer, within fifteen (15) days after the notification
required by subsection (k) (h), was mailed to the claimant's or
employer's last known address or otherwise delivered to the claimant
or employer, asks for a hearing before an administrative law judge
thereon, such decision shall be final and benefits shall be paid or
denied in accordance therewith.
(o) (k) If a claimant or an employer requests a hearing under
subsection (m) (i) or (n), (j), the request therefor shall be filed with the
department in writing within the prescribed periods as above set forth
in this section and shall be in such form as the department may
prescribe. In the event a hearing is requested by an employer or the
department after it has been administratively determined that benefits
should be allowed to a claimant, entitled benefits shall continue to be
paid to said claimant unless said administrative determination has been
reversed by a due process hearing. Benefits with respect to any week
not in dispute shall be paid promptly regardless of any appeal.
(p) (l) A person may not participate on behalf of the department in
any case in which the person is an interested party.
(q) (m) Solely on the ground of obvious administrative error
appearing on the face of an original determination, and within the
benefit year of the affected claims, the commissioner, or a
representative authorized by the commissioner to act in the
commissioner's behalf, may reconsider and direct the deputy to revise
the original determination so as to correct the obvious error appearing
therein. Time for filing an appeal and requesting a hearing before an
administrative law judge regarding the determinations handed down
pursuant to this subsection shall begin on the date following the date
of revision of the original determination and shall be filed with the
commissioner in writing within the prescribed periods as above set
forth in subsection (g). (c).
(r) (n) Notice to the employer and the claimant that the
determination of the department is final if a hearing is not requested
shall be prominently displayed on the notice of the determination
which is sent to the employer and the claimant.
(s) (o) If an allegation of the applicability of IC 22-4-15-1(c)(8) is
made by the individual at the time of the claim for benefits, the
department shall not notify the employer of the claimant's current
address or physical location.
time and as often as may be necessary. The department, the review
board, or an administrative law judge may require from any employing
unit any verified or unverified report, with respect to persons employed
by it, which is considered necessary for the effective administration of
(b) Except as provided in subsections (d) and (f), information obtained or obtained from any person in the administration of this article and the records of the department relating to the unemployment tax or the payment of benefits is confidential and may not be published or be open to public inspection in any manner revealing the individual's or the employing unit's identity, except in obedience to an order of a court or as provided in this section.
(c) A claimant or an employer at a hearing before an administrative law judge or the review board shall be supplied with information from the records referred to in this section to the extent necessary for the proper presentation of the subject matter of the appearance. The department may make the information necessary for a proper presentation of a subject matter before an administrative law judge or the review board available to an agency of the United States or an Indiana state agency.
(d) The department may release the following information:
(1) Summary statistical data may be released to the public.
(2) Employer specific information known as ES 202 data and data resulting from enhancements made through the business establishment list improvement project may be released to the Indiana economic development corporation only for the following purposes:
(A) The purpose of conducting a survey.
(B) The purpose of aiding the officers or employees of the Indiana economic development corporation in providing economic development assistance through program development, research, or other methods.
(C) Other purposes consistent with the goals of the Indiana economic development corporation and not inconsistent with those of the department, including the purposes of IC 5-28-6-7.
(3) Employer specific information known as ES 202 data and data resulting from enhancements made through the business establishment list improvement project may be released to the budget agency and the legislative services agency only for aiding the employees of the budget agency or the legislative services agency in forecasting tax revenues.
the program as a participant employed by an eligible
(c) The commissioner shall administer the program with the assistance of the secretary.
(d) The secretary shall administer funding of the program as provided in IC 12-8-12.5.
Sec. 8. This chapter expires December 31, 2013.
under IC 36-8-4-11. A person described in this subdivision may
not receive a preference for employment unless the person applies
for employment and meets all employment requirements
prescribed by law, including physical and age requirements, and
all employment requirements prescribed by the fire department.
(2) Contract with a municipality in the township or in a contiguous township that maintains adequate firefighting or emergency services apparatus and equipment to provide fire protection or emergency services for the township in accordance with IC 36-1-7.
(3) Cooperate with a municipality in the township or in a contiguous township in the purchase, maintenance, and upkeep of firefighting or emergency services apparatus and equipment for use in the municipality and township in accordance with IC 36-1-7.
(4) Contract with a volunteer fire department that has been organized to fight fires in the township for the use and operation of firefighting apparatus and equipment that has been purchased by the township in order to save the private and public property of the township from destruction by fire, including use of the apparatus and equipment in an adjoining township by the department if the department has made a contract with the executive of the adjoining township for the furnishing of firefighting service within the township.
(5) Contract with a volunteer fire department that maintains adequate firefighting service in accordance with IC 36-8-12.
(b) This subsection applies only to townships that provide fire protection or emergency services or both under subsection (a)(1) and to municipalities that have some part of the municipal territory within a township and do not have a full-time paid fire department. A township may provide fire protection or emergency services or both without contracts inside the corporate boundaries of the municipalities if before July 1 of a year the following occur:
(1) The legislative body of the municipality adopts an ordinance to have the township provide the services without a contract.
(2) The township legislative body passes a resolution approving the township's provision of the services without contracts to the municipality.
In a township providing services to a municipality under this section, the legislative body of either the township or a municipality in the township may opt out of participation under this subsection by adopting an ordinance or a resolution, respectively, before July 1 of a year.
electronic format under IC 5-14-6 before November 1, 2010, to the
legislative council containing any findings and recommendations
of the committee.
(e) Except as otherwise provided, the committee shall operate under the policies governing study committees adopted by the legislative council.
(f) The affirmative votes of a majority of the members appointed to the committee are required for the committee to take action on any measure, including final reports.
(g) This SECTION expires January 1, 2011.