IC 22-4-11.5
Chapter 11.5. Assignment of Employer Contribution Rates and
Transfers of Employer Experience Accounts
IC 22-4-11.5-1 Applicability
Sec. 1. Notwithstanding any other provision of this article, this
chapter applies to the assignment of contribution rates and transfers
of employer experience accounts after December 31, 2005. As added by P.L.98-2005, SEC.9.
IC 22-4-11.5-2 "Administrative law judge"
Sec. 2. As used in this chapter, "administrative law judge" means
a person employed by the commissioner under IC 22-4-17-4. As added by P.L.98-2005, SEC.9. Amended by P.L.108-2006,
SEC.16.
IC 22-4-11.5-3 "Person"
Sec. 3. As used in this chapter, "person" has the meaning set forth
in section 7701(a)(1) of the Internal Revenue Code. As added by P.L.98-2005, SEC.9.
IC 22-4-11.5-4 "Trade or business"
Sec. 4. As used in this chapter, "trade or business" includes an
employer's workforce. As added by P.L.98-2005, SEC.9.
IC 22-4-11.5-5 "Violates or attempts to violate"
Sec. 5. As used in this chapter, "violates or attempts to violate"
includes the intent to evade a higher employer contribution rate in
connection with a transfer of a trade or business through
misrepresentation or willful nondisclosure of information relevant to
the transfer. As added by P.L.98-2005, SEC.9. Amended by P.L.108-2006,
SEC.17.
IC 22-4-11.5-6 "Knowingly"; "recklessly"
Sec. 6. As used in this chapter:
(1) "knowingly" has the meaning set forth in IC 35-41-2-2(b);
and
(2) "recklessly" has the meaning set forth in IC 35-41-2-2(c). As added by P.L.98-2005, SEC.9.
IC 22-4-11.5-7 Transferring all or part of trade or business; successor employers
with substantially common ownership, management, or control
Sec. 7. (a) This section applies to a transfer of a trade or business
that meets the following requirements:
(1) An employer transfers all or a portion of the employer's
trade or business to another employer.
(2) At the time of the transfer, the two (2) employers have
substantially common ownership, management, or control.
(b) The successor employer shall assume the experience account
balance of the predecessor employer for the resources and liabilities
of the predecessor employer's experience account that are attributable
to the transfer.
(c) The contribution rates of both employers shall be recalculated,
and the recalculated rate made effective on the effective date of the
transfer described in subsection (a).
(d) The payroll of the predecessor employer on the effective date
of the transfer, and the benefits chargeable to the predecessor
employer's original experience account after the effective date of the
transfer, must be divided between the predecessor employer and the
successor employer in accordance with rules adopted by the
department under IC 4-22-2.
(e) Any written determination made by the department is
conclusive and binding on both the predecessor employer and the
successor employer unless one (1) employer files or both employers
file a written protest with the department setting forth all reasons for
the protest. A protest under this section must be filed not later than
fifteen (15) days after the date the department sends the initial
determination to the employers. The protest shall be heard and
determined under this section and IC 22-4-32-1 through
IC 22-4-32-15. The predecessor employer, the successor employer,
and the department shall be parties to the hearing before the liability
administrative law judge and are entitled to receive copies of all
pleadings and the decision. As added by P.L.98-2005, SEC.9. Amended by P.L.108-2006,
SEC.18.
IC 22-4-11.5-8 Transfers solely to obtain lower employer contribution rate
Sec. 8. (a) If the department determines that an employing unit or
other person that is not an employer under IC 22-4-7 at the time of
the acquisition has acquired an employer's trade or business solely or
primarily for the purpose of obtaining a lower employer contribution
rate, the employing unit or other person:
(1) may not assume the experience account balance of the
predecessor employer for the resources and liabilities of the
predecessor employer's experience account that are attributable
to the acquisition; and
(2) shall pay the applicable contribution rate as determined
under this article.
(b) In determining whether an employing unit or other person
acquired a trade or business solely or primarily for the purpose of
obtaining a lower employer contribution rate under subsection (a),
the department shall consider the following factors:
(1) The cost of acquiring the trade or business.
(2) Whether the employing unit or other person continued the
business enterprise of the acquired trade or business, including
whether the predecessor employer is no longer performing the
same trade or business and the trade or business is performed by
the employing unit to whom the workforce is transferred. An
employing unit is considered to continue the business enterprise
if any one (1) of the following applies:
(A) The predecessor employer and the employing unit are
corporations that are members of a "controlled group of
corporations", as defined in Section 1563 of the Internal
Revenue Code (generally parent-subsidiary or brother-sister
controlled groups), or would be members if Section
1563(a)(4) and 1563(b) of the Internal Revenue Code did not
apply and if the phrase "more than fifty percent (50%)" were
substituted for the phrase "at least eighty percent (80%)"
wherever it appears in Section 1563(a) of the Internal
Revenue Code.
(B) The predecessor employer and the employing unit are
entities that are part of an affiliated group, as defined in
Section 1504 of the Internal Revenue Code, except that the
ownership percentage in Section 1504(a)(2) of the Internal
Revenue Code shall be determined using fifty percent (50%)
instead of eighty percent (80%).
(C) A predecessor employer and an employing unit are
entities that do not issue stock, either fifty percent (50%) or
more of the members of one (1) entity's board of directors
(or other governing body) are members of the other entity's
board of directors (or other governing body), or the holders
of fifty percent (50%) or more of the voting power to select
these members are concurrently the holders of fifty percent
(50%) or more of that power with respect to the other entity.
(D) Fifty percent (50%) or more of one (1) entity's officers
are concurrently officers of the other entity.
(E) Thirty percent (30%) or more of one (1) entity's
employees are concurrently employees of the other entity.
(3) The length of time the employing unit or other person
continued the business enterprise of the acquired trade or
business.
(4) Whether a substantial number of new employees were hired
to perform duties unrelated to the business enterprise that the
trade or business conducted before the trade or business was
acquired.
(5) Whether the predecessor employer and the employing unit
are united by factors of control, operation, or use.
(6) Whether a new employing unit is being created solely to
obtain a lower contribution rate.
(c) Any written determination made by the department is
conclusive and binding on the employing unit or other person, unless
the employing unit or other person files a written protest with the
department setting forth all reasons for the protest. A protest under
this section must be filed not later than fifteen (15) days after the
date the department sends the initial determination to the employing
unit or other person. The protest shall be heard and determined under
this section and IC 22-4-32-1 through IC 22-4-32-15. The department
and the employing unit or other person shall be parties to the hearing
before the liability administrative law judge and are entitled to
receive copies of all pleadings and the decision. As added by P.L.98-2005, SEC.9. Amended by P.L.108-2006,
SEC.19; P.L.175-2009, SEC.16.
IC 22-4-11.5-9 Violation of chapter; civil penalties
Sec. 9. (a) A person who knowingly or recklessly:
(1) violates or attempts to violate:
(A) section 7 or 8 of this chapter; or
(B) any other provision of this article related to determining
the assumption or assignment of an employer's contribution
rate; or
(2) advises another person in a way that results in a violation of:
(A) section 7 or 8 of this chapter; or
(B) any other provision of this article related to determining
the assumption or assignment of an employer's contribution
rate;
is subject to a civil penalty under this chapter.
(b) If the department determines that an employer (as defined
under IC 22-4-7) is subject to a civil penalty under subsection (a)(1),
the department shall assign an employer contribution rate equal to
one (1) of the following as a civil penalty:
(1) The highest employer contribution rate assignable under this
article for the year in which the violation occurred and the
following three (3) years.
(2) An additional employer contribution rate of two percent
(2%) of the employer's taxable wages (as defined in
IC 22-4-4-2) for the year in which the violation occurred and
the following three (3) years, if:
(A) an employer is already paying the highest employer
contribution rate at the time of the violation; or
(B) the increase in the contribution rate described in
subdivision (1) is less than two percent (2%).
(c) If the department determines that a person who is not an
employer (as defined in IC 22-4-7) is subject to a civil penalty under
subsection (a)(2), the department shall assess a civil penalty of not
more than five thousand dollars ($5,000).
(d) All civil penalties collected under this section shall be
deposited in the unemployment insurance benefit fund established by
IC 22-4-26-1.
(e) Any written determination made by the department is
conclusive and binding on the employing unit, employer, or person
unless the employing unit, employer, or person files a written protest
with the department setting forth all reasons for the protest. A protest
under this section must be filed not later than fifteen (15) days after
the date the department sends the initial determination to the
employing unit, employer, or person. The protest shall be heard and
determined under this section and IC 22-4-32-1 through
IC 22-4-32-15. The employing unit, employer, or person, and the
department shall be parties to the hearing before the liability
administrative law judge and are entitled to receive copies of all
pleadings and the decision. As added by P.L.98-2005, SEC.9. Amended by P.L.108-2006,
SEC.20.
IC 22-4-11.5-10 Violation of chapter; Class C misdemeanor
Sec. 10. In addition to any other penalty imposed, a person who
knowingly, recklessly, or intentionally violates this chapter commits
a Class C misdemeanor. As added by P.L.98-2005, SEC.9. Amended by P.L.1-2006, SEC.342;
P.L.108-2006, SEC.21.
IC 22-4-11.5-11 Commissioner procedures to identify violators; applicability of
federal Department of Labor regulations
Sec. 11. (a) The commissioner shall establish procedures to
identify the transfer or acquisition of a business for purposes of this
chapter.
(b) The interpretation and application of this chapter must meet
the minimum requirements contained in any guidance or regulations
issued by the United States Department of Labor. As added by P.L.98-2005, SEC.9.
IC 22-4-11.5
Chapter 11.5. Assignment of Employer Contribution Rates and
Transfers of Employer Experience Accounts
IC 22-4-11.5-1 Applicability
Sec. 1. Notwithstanding any other provision of this article, this
chapter applies to the assignment of contribution rates and transfers
of employer experience accounts after December 31, 2005. As added by P.L.98-2005, SEC.9.
IC 22-4-11.5-2 "Administrative law judge"
Sec. 2. As used in this chapter, "administrative law judge" means
a person employed by the commissioner under IC 22-4-17-4. As added by P.L.98-2005, SEC.9. Amended by P.L.108-2006,
SEC.16.
IC 22-4-11.5-3 "Person"
Sec. 3. As used in this chapter, "person" has the meaning set forth
in section 7701(a)(1) of the Internal Revenue Code. As added by P.L.98-2005, SEC.9.
IC 22-4-11.5-4 "Trade or business"
Sec. 4. As used in this chapter, "trade or business" includes an
employer's workforce. As added by P.L.98-2005, SEC.9.
IC 22-4-11.5-5 "Violates or attempts to violate"
Sec. 5. As used in this chapter, "violates or attempts to violate"
includes the intent to evade a higher employer contribution rate in
connection with a transfer of a trade or business through
misrepresentation or willful nondisclosure of information relevant to
the transfer. As added by P.L.98-2005, SEC.9. Amended by P.L.108-2006,
SEC.17.
IC 22-4-11.5-6 "Knowingly"; "recklessly"
Sec. 6. As used in this chapter:
(1) "knowingly" has the meaning set forth in IC 35-41-2-2(b);
and
(2) "recklessly" has the meaning set forth in IC 35-41-2-2(c). As added by P.L.98-2005, SEC.9.
IC 22-4-11.5-7 Transferring all or part of trade or business; successor employers
with substantially common ownership, management, or control
Sec. 7. (a) This section applies to a transfer of a trade or business
that meets the following requirements:
(1) An employer transfers all or a portion of the employer's
trade or business to another employer.
(2) At the time of the transfer, the two (2) employers have
substantially common ownership, management, or control.
(b) The successor employer shall assume the experience account
balance of the predecessor employer for the resources and liabilities
of the predecessor employer's experience account that are attributable
to the transfer.
(c) The contribution rates of both employers shall be recalculated,
and the recalculated rate made effective on the effective date of the
transfer described in subsection (a).
(d) The payroll of the predecessor employer on the effective date
of the transfer, and the benefits chargeable to the predecessor
employer's original experience account after the effective date of the
transfer, must be divided between the predecessor employer and the
successor employer in accordance with rules adopted by the
department under IC 4-22-2.
(e) Any written determination made by the department is
conclusive and binding on both the predecessor employer and the
successor employer unless one (1) employer files or both employers
file a written protest with the department setting forth all reasons for
the protest. A protest under this section must be filed not later than
fifteen (15) days after the date the department sends the initial
determination to the employers. The protest shall be heard and
determined under this section and IC 22-4-32-1 through
IC 22-4-32-15. The predecessor employer, the successor employer,
and the department shall be parties to the hearing before the liability
administrative law judge and are entitled to receive copies of all
pleadings and the decision. As added by P.L.98-2005, SEC.9. Amended by P.L.108-2006,
SEC.18.
IC 22-4-11.5-8 Transfers solely to obtain lower employer contribution rate
Sec. 8. (a) If the department determines that an employing unit or
other person that is not an employer under IC 22-4-7 at the time of
the acquisition has acquired an employer's trade or business solely or
primarily for the purpose of obtaining a lower employer contribution
rate, the employing unit or other person:
(1) may not assume the experience account balance of the
predecessor employer for the resources and liabilities of the
predecessor employer's experience account that are attributable
to the acquisition; and
(2) shall pay the applicable contribution rate as determined
under this article.
(b) In determining whether an employing unit or other person
acquired a trade or business solely or primarily for the purpose of
obtaining a lower employer contribution rate under subsection (a),
the department shall consider the following factors:
(1) The cost of acquiring the trade or business.
(2) Whether the employing unit or other person continued the
business enterprise of the acquired trade or business, including
whether the predecessor employer is no longer performing the
same trade or business and the trade or business is performed by
the employing unit to whom the workforce is transferred. An
employing unit is considered to continue the business enterprise
if any one (1) of the following applies:
(A) The predecessor employer and the employing unit are
corporations that are members of a "controlled group of
corporations", as defined in Section 1563 of the Internal
Revenue Code (generally parent-subsidiary or brother-sister
controlled groups), or would be members if Section
1563(a)(4) and 1563(b) of the Internal Revenue Code did not
apply and if the phrase "more than fifty percent (50%)" were
substituted for the phrase "at least eighty percent (80%)"
wherever it appears in Section 1563(a) of the Internal
Revenue Code.
(B) The predecessor employer and the employing unit are
entities that are part of an affiliated group, as defined in
Section 1504 of the Internal Revenue Code, except that the
ownership percentage in Section 1504(a)(2) of the Internal
Revenue Code shall be determined using fifty percent (50%)
instead of eighty percent (80%).
(C) A predecessor employer and an employing unit are
entities that do not issue stock, either fifty percent (50%) or
more of the members of one (1) entity's board of directors
(or other governing body) are members of the other entity's
board of directors (or other governing body), or the holders
of fifty percent (50%) or more of the voting power to select
these members are concurrently the holders of fifty percent
(50%) or more of that power with respect to the other entity.
(D) Fifty percent (50%) or more of one (1) entity's officers
are concurrently officers of the other entity.
(E) Thirty percent (30%) or more of one (1) entity's
employees are concurrently employees of the other entity.
(3) The length of time the employing unit or other person
continued the business enterprise of the acquired trade or
business.
(4) Whether a substantial number of new employees were hired
to perform duties unrelated to the business enterprise that the
trade or business conducted before the trade or business was
acquired.
(5) Whether the predecessor employer and the employing unit
are united by factors of control, operation, or use.
(6) Whether a new employing unit is being created solely to
obtain a lower contribution rate.
(c) Any written determination made by the department is
conclusive and binding on the employing unit or other person, unless
the employing unit or other person files a written protest with the
department setting forth all reasons for the protest. A protest under
this section must be filed not later than fifteen (15) days after the
date the department sends the initial determination to the employing
unit or other person. The protest shall be heard and determined under
this section and IC 22-4-32-1 through IC 22-4-32-15. The department
and the employing unit or other person shall be parties to the hearing
before the liability administrative law judge and are entitled to
receive copies of all pleadings and the decision. As added by P.L.98-2005, SEC.9. Amended by P.L.108-2006,
SEC.19; P.L.175-2009, SEC.16.
IC 22-4-11.5-9 Violation of chapter; civil penalties
Sec. 9. (a) A person who knowingly or recklessly:
(1) violates or attempts to violate:
(A) section 7 or 8 of this chapter; or
(B) any other provision of this article related to determining
the assumption or assignment of an employer's contribution
rate; or
(2) advises another person in a way that results in a violation of:
(A) section 7 or 8 of this chapter; or
(B) any other provision of this article related to determining
the assumption or assignment of an employer's contribution
rate;
is subject to a civil penalty under this chapter.
(b) If the department determines that an employer (as defined
under IC 22-4-7) is subject to a civil penalty under subsection (a)(1),
the department shall assign an employer contribution rate equal to
one (1) of the following as a civil penalty:
(1) The highest employer contribution rate assignable under this
article for the year in which the violation occurred and the
following three (3) years.
(2) An additional employer contribution rate of two percent
(2%) of the employer's taxable wages (as defined in
IC 22-4-4-2) for the year in which the violation occurred and
the following three (3) years, if:
(A) an employer is already paying the highest employer
contribution rate at the time of the violation; or
(B) the increase in the contribution rate described in
subdivision (1) is less than two percent (2%).
(c) If the department determines that a person who is not an
employer (as defined in IC 22-4-7) is subject to a civil penalty under
subsection (a)(2), the department shall assess a civil penalty of not
more than five thousand dollars ($5,000).
(d) All civil penalties collected under this section shall be
deposited in the unemployment insurance benefit fund established by
IC 22-4-26-1.
(e) Any written determination made by the department is
conclusive and binding on the employing unit, employer, or person
unless the employing unit, employer, or person files a written protest
with the department setting forth all reasons for the protest. A protest
under this section must be filed not later than fifteen (15) days after
the date the department sends the initial determination to the
employing unit, employer, or person. The protest shall be heard and
determined under this section and IC 22-4-32-1 through
IC 22-4-32-15. The employing unit, employer, or person, and the
department shall be parties to the hearing before the liability
administrative law judge and are entitled to receive copies of all
pleadings and the decision. As added by P.L.98-2005, SEC.9. Amended by P.L.108-2006,
SEC.20.
IC 22-4-11.5-10 Violation of chapter; Class C misdemeanor
Sec. 10. In addition to any other penalty imposed, a person who
knowingly, recklessly, or intentionally violates this chapter commits
a Class C misdemeanor. As added by P.L.98-2005, SEC.9. Amended by P.L.1-2006, SEC.342;
P.L.108-2006, SEC.21.
IC 22-4-11.5-11 Commissioner procedures to identify violators; applicability of
federal Department of Labor regulations
Sec. 11. (a) The commissioner shall establish procedures to
identify the transfer or acquisition of a business for purposes of this
chapter.
(b) The interpretation and application of this chapter must meet
the minimum requirements contained in any guidance or regulations
issued by the United States Department of Labor. As added by P.L.98-2005, SEC.9.
IC 22-4-11.5
Chapter 11.5. Assignment of Employer Contribution Rates and
Transfers of Employer Experience Accounts
IC 22-4-11.5-1 Applicability
Sec. 1. Notwithstanding any other provision of this article, this
chapter applies to the assignment of contribution rates and transfers
of employer experience accounts after December 31, 2005. As added by P.L.98-2005, SEC.9.
IC 22-4-11.5-2 "Administrative law judge"
Sec. 2. As used in this chapter, "administrative law judge" means
a person employed by the commissioner under IC 22-4-17-4. As added by P.L.98-2005, SEC.9. Amended by P.L.108-2006,
SEC.16.
IC 22-4-11.5-3 "Person"
Sec. 3. As used in this chapter, "person" has the meaning set forth
in section 7701(a)(1) of the Internal Revenue Code. As added by P.L.98-2005, SEC.9.
IC 22-4-11.5-4 "Trade or business"
Sec. 4. As used in this chapter, "trade or business" includes an
employer's workforce. As added by P.L.98-2005, SEC.9.
IC 22-4-11.5-5 "Violates or attempts to violate"
Sec. 5. As used in this chapter, "violates or attempts to violate"
includes the intent to evade a higher employer contribution rate in
connection with a transfer of a trade or business through
misrepresentation or willful nondisclosure of information relevant to
the transfer. As added by P.L.98-2005, SEC.9. Amended by P.L.108-2006,
SEC.17.
IC 22-4-11.5-6 "Knowingly"; "recklessly"
Sec. 6. As used in this chapter:
(1) "knowingly" has the meaning set forth in IC 35-41-2-2(b);
and
(2) "recklessly" has the meaning set forth in IC 35-41-2-2(c). As added by P.L.98-2005, SEC.9.
IC 22-4-11.5-7 Transferring all or part of trade or business; successor employers
with substantially common ownership, management, or control
Sec. 7. (a) This section applies to a transfer of a trade or business
that meets the following requirements:
(1) An employer transfers all or a portion of the employer's
trade or business to another employer.
(2) At the time of the transfer, the two (2) employers have
substantially common ownership, management, or control.
(b) The successor employer shall assume the experience account
balance of the predecessor employer for the resources and liabilities
of the predecessor employer's experience account that are attributable
to the transfer.
(c) The contribution rates of both employers shall be recalculated,
and the recalculated rate made effective on the effective date of the
transfer described in subsection (a).
(d) The payroll of the predecessor employer on the effective date
of the transfer, and the benefits chargeable to the predecessor
employer's original experience account after the effective date of the
transfer, must be divided between the predecessor employer and the
successor employer in accordance with rules adopted by the
department under IC 4-22-2.
(e) Any written determination made by the department is
conclusive and binding on both the predecessor employer and the
successor employer unless one (1) employer files or both employers
file a written protest with the department setting forth all reasons for
the protest. A protest under this section must be filed not later than
fifteen (15) days after the date the department sends the initial
determination to the employers. The protest shall be heard and
determined under this section and IC 22-4-32-1 through
IC 22-4-32-15. The predecessor employer, the successor employer,
and the department shall be parties to the hearing before the liability
administrative law judge and are entitled to receive copies of all
pleadings and the decision. As added by P.L.98-2005, SEC.9. Amended by P.L.108-2006,
SEC.18.
IC 22-4-11.5-8 Transfers solely to obtain lower employer contribution rate
Sec. 8. (a) If the department determines that an employing unit or
other person that is not an employer under IC 22-4-7 at the time of
the acquisition has acquired an employer's trade or business solely or
primarily for the purpose of obtaining a lower employer contribution
rate, the employing unit or other person:
(1) may not assume the experience account balance of the
predecessor employer for the resources and liabilities of the
predecessor employer's experience account that are attributable
to the acquisition; and
(2) shall pay the applicable contribution rate as determined
under this article.
(b) In determining whether an employing unit or other person
acquired a trade or business solely or primarily for the purpose of
obtaining a lower employer contribution rate under subsection (a),
the department shall consider the following factors:
(1) The cost of acquiring the trade or business.
(2) Whether the employing unit or other person continued the
business enterprise of the acquired trade or business, including
whether the predecessor employer is no longer performing the
same trade or business and the trade or business is performed by
the employing unit to whom the workforce is transferred. An
employing unit is considered to continue the business enterprise
if any one (1) of the following applies:
(A) The predecessor employer and the employing unit are
corporations that are members of a "controlled group of
corporations", as defined in Section 1563 of the Internal
Revenue Code (generally parent-subsidiary or brother-sister
controlled groups), or would be members if Section
1563(a)(4) and 1563(b) of the Internal Revenue Code did not
apply and if the phrase "more than fifty percent (50%)" were
substituted for the phrase "at least eighty percent (80%)"
wherever it appears in Section 1563(a) of the Internal
Revenue Code.
(B) The predecessor employer and the employing unit are
entities that are part of an affiliated group, as defined in
Section 1504 of the Internal Revenue Code, except that the
ownership percentage in Section 1504(a)(2) of the Internal
Revenue Code shall be determined using fifty percent (50%)
instead of eighty percent (80%).
(C) A predecessor employer and an employing unit are
entities that do not issue stock, either fifty percent (50%) or
more of the members of one (1) entity's board of directors
(or other governing body) are members of the other entity's
board of directors (or other governing body), or the holders
of fifty percent (50%) or more of the voting power to select
these members are concurrently the holders of fifty percent
(50%) or more of that power with respect to the other entity.
(D) Fifty percent (50%) or more of one (1) entity's officers
are concurrently officers of the other entity.
(E) Thirty percent (30%) or more of one (1) entity's
employees are concurrently employees of the other entity.
(3) The length of time the employing unit or other person
continued the business enterprise of the acquired trade or
business.
(4) Whether a substantial number of new employees were hired
to perform duties unrelated to the business enterprise that the
trade or business conducted before the trade or business was
acquired.
(5) Whether the predecessor employer and the employing unit
are united by factors of control, operation, or use.
(6) Whether a new employing unit is being created solely to
obtain a lower contribution rate.
(c) Any written determination made by the department is
conclusive and binding on the employing unit or other person, unless
the employing unit or other person files a written protest with the
department setting forth all reasons for the protest. A protest under
this section must be filed not later than fifteen (15) days after the
date the department sends the initial determination to the employing
unit or other person. The protest shall be heard and determined under
this section and IC 22-4-32-1 through IC 22-4-32-15. The department
and the employing unit or other person shall be parties to the hearing
before the liability administrative law judge and are entitled to
receive copies of all pleadings and the decision. As added by P.L.98-2005, SEC.9. Amended by P.L.108-2006,
SEC.19; P.L.175-2009, SEC.16.
IC 22-4-11.5-9 Violation of chapter; civil penalties
Sec. 9. (a) A person who knowingly or recklessly:
(1) violates or attempts to violate:
(A) section 7 or 8 of this chapter; or
(B) any other provision of this article related to determining
the assumption or assignment of an employer's contribution
rate; or
(2) advises another person in a way that results in a violation of:
(A) section 7 or 8 of this chapter; or
(B) any other provision of this article related to determining
the assumption or assignment of an employer's contribution
rate;
is subject to a civil penalty under this chapter.
(b) If the department determines that an employer (as defined
under IC 22-4-7) is subject to a civil penalty under subsection (a)(1),
the department shall assign an employer contribution rate equal to
one (1) of the following as a civil penalty:
(1) The highest employer contribution rate assignable under this
article for the year in which the violation occurred and the
following three (3) years.
(2) An additional employer contribution rate of two percent
(2%) of the employer's taxable wages (as defined in
IC 22-4-4-2) for the year in which the violation occurred and
the following three (3) years, if:
(A) an employer is already paying the highest employer
contribution rate at the time of the violation; or
(B) the increase in the contribution rate described in
subdivision (1) is less than two percent (2%).
(c) If the department determines that a person who is not an
employer (as defined in IC 22-4-7) is subject to a civil penalty under
subsection (a)(2), the department shall assess a civil penalty of not
more than five thousand dollars ($5,000).
(d) All civil penalties collected under this section shall be
deposited in the unemployment insurance benefit fund established by
IC 22-4-26-1.
(e) Any written determination made by the department is
conclusive and binding on the employing unit, employer, or person
unless the employing unit, employer, or person files a written protest
with the department setting forth all reasons for the protest. A protest
under this section must be filed not later than fifteen (15) days after
the date the department sends the initial determination to the
employing unit, employer, or person. The protest shall be heard and
determined under this section and IC 22-4-32-1 through
IC 22-4-32-15. The employing unit, employer, or person, and the
department shall be parties to the hearing before the liability
administrative law judge and are entitled to receive copies of all
pleadings and the decision. As added by P.L.98-2005, SEC.9. Amended by P.L.108-2006,
SEC.20.
IC 22-4-11.5-10 Violation of chapter; Class C misdemeanor
Sec. 10. In addition to any other penalty imposed, a person who
knowingly, recklessly, or intentionally violates this chapter commits
a Class C misdemeanor. As added by P.L.98-2005, SEC.9. Amended by P.L.1-2006, SEC.342;
P.L.108-2006, SEC.21.
IC 22-4-11.5-11 Commissioner procedures to identify violators; applicability of
federal Department of Labor regulations
Sec. 11. (a) The commissioner shall establish procedures to
identify the transfer or acquisition of a business for purposes of this
chapter.
(b) The interpretation and application of this chapter must meet
the minimum requirements contained in any guidance or regulations
issued by the United States Department of Labor. As added by P.L.98-2005, SEC.9.
