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61-5-39. [Effective until July 1, 2021] Benefits charged against experience-rating accounts--Events for which account not chargeable--Erroneous payments.

Each employer's experience-rating account shall be charged with all benefits chargeable, as provided in this title, except extended benefits paid as provided in §§ 61-6-49 to 61-6-66, inclusive, against wages paid for employment by the employer. However, no benefits paid on the basis of a period of employment may be charged to the experience-rating account of any employer, except as provided in § 61-5-41, if the claimant:

(1)    Voluntarily separated without good cause attributable to the employer or the employment;

(2)    Was discharged or suspended for misconduct connected with the employment, or for conduct mandated by religious belief which belief cannot be reasonably accommodated by the employer;

(3)    Was discharged or suspended for inability or incompetence to successfully complete a ninety-day probationary period established between the employer and employee at the time of employment;

(4)    Earned total base period wages of less than one hundred dollars with one employer;

(5)    Is receiving benefits while in approved training authorized by § 61-6-21;

(6)    Performed services while incarcerated in a custodial or penal institution and terminated the employment because of the claimant's transfer or release from the institution;

(7)    Received benefits for unemployment directly caused by a major disaster declared by the president pursuant to section 401(a) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121 et seq., if the individual would have been eligible for disaster unemployment assistance with respect to that unemployment but for the receipt of reemployment assistance or unemployment insurance benefits;

(8)    Received benefits for unemployment resulting directly from the reinstatement of another employee upon that employee's completion of service in the uniformed services as defined in 38 U.S.C. § 4303(13), as in effect on January 1, 2005, or the completion of state active duty by members of the National Guard who are activated pursuant to a call from the Governor as provided by law;

(9)    Voluntarily separated to accompany a spouse who was reassigned from one military assignment to another; or

(10)    Is unemployed as a direct result of an employer temporarily ceasing operations or instituting a reduction in force in response to Coronavirus Disease 2019 or because the claimant has been requested to isolate or quarantine as a result of Coronavirus Disease 2019 regardless of whether the claimant has tested positive for Coronavirus Disease 2019. Relief of charges under this subdivision may be granted for no more than the duration of any emergency relating to Coronavirus Disease 2019 as declared by the Governor.

However, no relief of charges applies if the department determines that an erroneous payment has been made because the employer, or an agent of the employer, was at fault for failing to respond timely or adequately to the department's request for information relating to the payment of benefits. For the purposes of this section, an erroneous payment is a payment that would not have been made but for the failure of the employer or the employer's agent to fully respond to the department's request pursuant to § 61-7-5.

Source: SDC 1939, § 17.0822 (4) (c) as added by SL 1943, ch 77, § 4; SL 1947, ch 89, § 1; SL 1951, ch 94, § 6; SL 1953, ch 78; SDC Supp 1960, § 17.0822 (3) (b); SL 1961, ch 106, § 3; SL 1971, ch 276, § 46; SL 1981, ch 370; SL 1982, ch 372, § 1; SL 1984, ch 336, § 1; SL 1987, ch 388, § 1; SL 1989, ch 449, § 3; SL 1991, ch 413, § 2; SL 1994, ch 392, § 1; SL 2005, ch 283, § 1; SDCL § 61-5-29; SL 2012, ch 252, § 59; SL 2012, ch 253, § 2; SL 2013, ch 258, § 2; SL 2019, ch 216, § 13; SL 2020, ch 215, § 1, eff. Mar. 31, 2020.

Effective July 1, 2021

61-5-39[Effective July 1, 2021] Benefits charged against experience-rating accounts--Events for which account not chargeable--Erroneous payments.

Each employer's experience-rating account shall be charged with all benefits chargeable, as provided in this title, except extended benefits paid as provided in §§ 61-6-49 to 61-6-66, inclusive, against wages paid for employment by the employer. However, no benefits paid on the basis of a period of employment may be charged to the experience-rating account of any employer, except as provided in § 61-5-41, if the claimant:

(1)    Voluntarily separated without good cause attributable to the employer or the employment;

(2)    Was discharged or suspended for misconduct connected with the employment, or for conduct mandated by religious belief which belief cannot be reasonably accommodated by the employer;

(3)    Was discharged or suspended for inability or incompetence to successfully complete a ninety-day probationary period established between the employer and employee at the time of employment;

(4)    Earned total base period wages of less than one hundred dollars with one employer;

(5)    Is receiving benefits while in approved training authorized by § 61-6-21;

(6)    Performed services while incarcerated in a custodial or penal institution and terminated such employment because of his transfer or release from the institution;

(7)    Received benefits for unemployment directly caused by a major natural disaster declared by the president pursuant to section 410(a) of the Robert T. Stafford Disaster Relief and Employment Assistance Act, 42 U.S.C. § 5177, if the individual would have been eligible for disaster unemployment assistance with respect to that unemployment but for the receipt of reemployment assistance or unemployment insurance benefits;

(8)    Received benefits for unemployment resulting directly from the reinstatement of another employee upon that employee's completion of service in the uniformed services as provided in 38 U.S.C. § 4303(13) as of January 1, 2005, or the completion of state active duty by members of the National Guard who are activated pursuant to a call from the Governor as provided by law; or

(9)    Voluntarily separated to accompany a spouse who was reassigned from one military assignment to another.

However, no relief of charges applies if the department determines that an erroneous payment has been made because the employer, or an agent of the employer, was at fault for failing to respond timely or adequately to the department's request for information relating to the payment of benefits. For the purposes of this section, an erroneous payment is a payment that would not have been made but for the failure of the employer or the employer's agent to fully respond to the department's request pursuant to § 61-7-5.

Source: SDC 1939, § 17.0822 (4) (c) as added by SL 1943, ch 77, § 4; SL 1947, ch 89, § 1; SL 1951, ch 94, § 6; SL 1953, ch 78; SDC Supp 1960, § 17.0822 (3) (b); SL 1961, ch 106, § 3; SL 1971, ch 276, § 46; SL 1981, ch 370; SL 1982, ch 372, § 1; SL 1984, ch 336, § 1; SL 1987, ch 388, § 1; SL 1989, ch 449, § 3; SL 1991, ch 413, § 2; SL 1994, ch 392, § 1; SL 2005, ch 283, § 1; SDCL § 61-5-29; SL 2012, ch 252, § 59; SL 2012, ch 253, § 2; SL 2013, ch 258, § 2; SL 2019, ch 216, § 13; SL 2020, ch 215, § 1, eff. Jul. 1, 2021.


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