SECOND REGULAR SESSION

HOUSE BILL NO. 1368

88TH GENERAL ASSEMBLY

INTRODUCED BY REPRESENTATIVE MAY (108).

Read 1st time January 30, 1996 and 1000 copies ordered printed.

DOUGLAS W. BURNETT, Chief Clerk

L3159.01I

AN ACT

To repeal sections 288.380 and 347.187, RSMo 1994, and sections 351.488 and 358.150, RSMo Supp. 1995, relating to unemployment compensation funds, and to enact in lieu thereof four new sections relating to the same subject.

Be it enacted by the General Assembly of the state of Missouri, as follows:

Section A. Sections 288.380 and 347.187, RSMo 1994, and sections 351.488 and 358.150, RSMo Supp. 1995, are repealed and four new sections enacted in lieu thereof, to be known as sections 288.380, 347.187, 351.488 and 358.150, to read as follows:

288.380. 1. Any agreement by a worker to waive, release, or commute [his] such worker's rights to benefits or any other rights [under this law, or under] pursuant to this chapter, or pursuant to an employment security law of any other state or of the federal government shall be void. Any agreement by a worker to pay all or any portion of any contributions required shall be void. No employer shall directly or indirectly make any deduction from wages to finance the employer's contributions required from him or her, or accept any waiver of any right [under this law] pursuant to this chapter by any individual in his or her employ.

2. No employing unit or any agent of an employing unit or any other person shall make a false statement or representation knowing it to be false, nor shall knowingly fail to disclose a material fact to prevent or reduce the payment of benefits to any individual, nor to avoid becoming or remaining an employer, nor to avoid or reduce any contribution or other payment required from any employing unit, nor shall willfully fail or refuse to make any contributions or payments nor to furnish any required reports nor to produce or permit the inspection or copying of required records. Each such requirement shall apply regardless of whether it is a requirement of this [law] chapter, of an employment security law of any other state or of the federal government.

3. No person shall make a false statement or representation knowing it to be false or knowingly fail to disclose a material fact, to obtain or increase any benefit or other payment [under this law] pursuant to this chapter, or under an employment security law of any other state or of the federal government either for himself or herself or for any other person.

4. No person shall without just cause fail or refuse to attend and testify or to answer any lawful inquiry or to produce books, papers, correspondence, memoranda, and other records, if it is in [his] such person's power so to do in obedience to a subpoena of the director, the commission, an appeals tribunal, or any duly authorized representative of any one of them.

5. No individual claiming benefits shall be charged fees of any kind in any proceeding [under this law] pursuant to this chapter by the division, or by any court or any officer thereof. Any individual claiming benefits in any proceeding before the division or a court may be represented by counsel or other duly authorized agent; but no such counsel or agents shall either charge or receive for such services more than an amount approved by the division.

6. No employee of the division or any person who has obtained any list of applicants for work or of claimants for or recipients of benefits [under this law] pursuant to this chapter shall use or permit the use of such lists for any political purpose.

7. Any person who shall willfully violate any provision of this [law] chapter, or of an employment security law of any other state or of the federal government or any rule or regulation, the observance of which is required under the terms of any one of such laws, shall upon conviction be deemed guilty of a misdemeanor and shall be punished by a fine of not less than fifty dollars nor more than one thousand dollars, or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment, and each such violation or each day such violation continues shall be deemed to be a separate offense.

8. In case of contumacy by, or refusal to obey a subpoena issued to, any person, any court of this state within the jurisdiction of which the inquiry is carried on, or within the jurisdiction of which the person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the director, the commission, an appeals tribunal, or any duly authorized representative of any one of them shall have jurisdiction to issue to such person an order requiring such person to appear before the director, the commission, an appeals tribunal or any duly authorized representative of any one of them, there to produce evidence if so ordered or there to give testimony touching the matter under investigation or in question; and any failure to obey such order of the court may be punished by the court as a contempt thereof.

9. An individual who willfully fails to disclose amounts earned during any week with respect to which benefits are claimed by him or her, willfully fails to disclose or has falsified as to any fact which would have disqualified him or her or rendered him or her ineligible for benefits during such week, or willfully fails to disclose a material fact or makes a false statement or representation in order to obtain or increase any benefit [under this law] pursuant to this chapter, shall forfeit all of his or her benefit rights, and all of his or her wage credits accrued prior to the date of such failure to disclose or falsification shall be canceled, and any benefits which might otherwise have become payable to him or her subsequent to such date based upon such wage credits shall be forfeited; except that, the division may, upon good cause shown, modify such reduction of benefits and cancellation of wage credits. It shall be presumed that such failure or falsification was willful in any case in which an individual signs and certifies a claim for benefits and fails to disclose or falsifies as to any fact relative to such claim.

10. (1) Any assignment, pledge, or encumbrance of any rights to benefits which are or may become due or payable [under this law] pursuant to this chapter shall be void; and such rights to benefits shall be exempt from levy, execution, attachment, or any other remedy whatsoever provided for the collection of debt; and benefits received by any individual, so long as they are not mingled with other funds of the recipient, shall be exempt from any remedy whatsoever for the collection of all debts except debts incurred for necessaries furnished to such individual or [his] the individual's spouse or dependents during the time such individual was unemployed. Any waiver of any exemption provided for in this subsection shall be void; except that this section shall not apply to:

(a) Support obligations, as defined [under] pursuant to paragraph (g) of subdivision (2) of this subsection, which are being enforced by a state or local support enforcement agency against any individual claiming unemployment compensation [under this law] pursuant to this chapter; or

(b) Uncollected overissuances (as defined in section 13(c)(1) of the Food Stamp Act of 1977) of food stamp coupons;

(2) (a) An individual filing a new claim for unemployment compensation shall, at the time of filing such claim, disclose whether or not the individual owes support obligations, as defined [under] pursuant to paragraph (g) of this subdivision or owes uncollected overissuances of food stamp coupons (as defined in section 13(c)(1) of the Food Stamp Act of 1977). If any such individual discloses that he or she owes support obligations or uncollected overissuances of food stamp coupons, and is determined to be eligible for unemployment compensation, the division shall notify the state or local support enforcement agency enforcing the support obligation or the state food stamp agency to which the uncollected food stamp overissuance is owed that such individual has been determined to be eligible for unemployment compensation;

(b) The division shall deduct and withhold from any unemployment compensation payable to an individual who owes support obligations as defined [under] pursuant to paragraph (g) of this subdivision or who owes uncollected food stamp overissuances:

a. The amount specified by the individual to the division to be deducted and withheld [under] pursuant to this paragraph if neither subparagraph b. nor subparagraph c. of this paragraph is applicable; or

b. The amount, if any, determined pursuant to an agreement submitted to the division [under] pursuant to section 454(20)(B)(i) of the Social Security Act by the state or local support enforcement agency, unless subparagraph c. of this paragraph is applicable; or the amount (if any) determined pursuant to an agreement submitted to the state food stamp agency [under] pursuant to section 13(c)(3)(a) of the Food Stamp Act of 1977; or

c. Any amount otherwise required to be so deducted and withheld from such unemployment compensation pursuant to properly served legal process, as that term is defined in section 462(e) of the Social Security Act; or any amount otherwise required to be deducted and withheld from the unemployment compensation pursuant to section 13(c)(3)(b) of the Food Stamp Act of 1977;

(c) Any amount deducted and withheld [under] pursuant to paragraph (b) of this subdivision shall be paid by the division to the appropriate state or local support enforcement agency or state food stamp agency;

(d) Any amount deducted and withheld [under] pursuant to paragraph (b) of this subdivision shall, for all purposes, be treated as if it were paid to the individual as unemployment compensation and paid by such individual to the state or local support enforcement agency in satisfaction of the individual's support obligations or to the state food stamp agency to which the uncollected overissuance is owed as repayment of the individual's uncollected overissuance;

(e) For purposes of paragraphs (a), (b), (c), and (d) of this subdivision, the term "unemployment compensation" means any compensation payable [under this law] pursuant to this chapter, including amounts payable by the division pursuant to an agreement [under] pursuant to any federal law providing for compensation, assistance, or allowances with respect to unemployment;

(f) Deductions will be made pursuant to this section only if appropriate arrangements have been made for reimbursement by the state or local support enforcement agency, or the state food stamp agency, for the administrative costs incurred by the division [under] pursuant to this section which are attributable to support obligations being enforced by the state or local support enforcement agency or which are attributable to uncollected overissuances of food stamp coupons;

(g) The term "support obligations" is defined for purposes of this subsection as including only obligations which are being enforced pursuant to a plan described in section 454 of the Social Security Act which has been approved by the Secretary of Health and Human Services [under] pursuant to Part D of Title IV of the Social Security Act;

(h) The term "state or local support enforcement agency", as used in this subsection, means any agency of a state, or political subdivision thereof, operating pursuant to a plan described in paragraph (g) of this subdivision;

(i) The term "state food stamp agency" as used in this subsection, means any agency of a state, or political subdivision thereof, operating pursuant to a plan described in the Food Stamp Act of 1977;

(j) The director may prescribe the procedures to be followed and the form and contents of any documents required in carrying out the provisions of this subsection;

(k) The division shall comply with the following priority when deducting and withholding amounts from any unemployment compensation payable to an individual:

a. Before withholding any amount for child support obligations or uncollected overissuances of food stamp coupons, the division shall first deduct and withhold from any unemployment compensation payable to an individual the amount, as determined by the division, owed pursuant to subsection 11 or 12 of this section;

b. If, after deductions are made pursuant to subparagraph a. of paragraph (k) of this subdivision, an individual has remaining unemployment compensation amounts due and owing, and the individual owes support obligations or uncollected overissuances of food stamp coupons, the division shall first deduct and withhold any remaining unemployment compensation amounts for application to child support obligations owed by the individual;

c. If, after deductions are made pursuant to subparagraphs a. and b. of paragraph (k) of this subdivision, an individual has remaining unemployment compensation amounts due and owing, and the individual owes uncollected overissuances of food stamp coupons, the division shall deduct and withhold any remaining unemployment compensation amounts for application to uncollected overissuances of food stamp coupons owed by the individual.

11. Any person who, by reason of the nondisclosure or misrepresentation by [him] such person or by another of a material fact, has received any sum as benefits [under this law] pursuant to this chapter while any conditions for the receipt of benefits imposed by this [law] chapter were not fulfilled in [his] such person's case, or while he or she was disqualified from receiving benefits, shall, in the discretion of the division, either be liable to have such sums deducted from any future benefits payable to [him under this law] such person pursuant to this chapter or shall be liable to repay to the division for the unemployment compensation fund a sum equal to the amounts so received by him or her, and such sum shall be collectible in the manner provided in sections 288.160 and 288.170 for the collection of past due contributions.

12. Any person who, by reason of any error or omission or because of a lack of knowledge of material fact on the part of the division, has received any sum [as benefits under this law] of benefits pursuant to this chapter while any conditions for the receipt of benefits imposed by this [law] chapter were not fulfilled in [his] such person's case, or while [he] such person was disqualified from receiving benefits, shall after an opportunity for a fair hearing [under the provisions of] pursuant to subsection 2 of section 288.190 have such sums deducted from any further benefits payable to [him under this law] such person pursuant to this chapter, provided that the division may elect not to process such possible overpayments where the amount of same is not over [five dollars] twenty percent of the maximum state weekly benefit amount in effect at the time the error or omission was discovered. Recovering overpaid unemployment compensation benefits which are a result of error or omission on the part of the claimant shall be pursued by the division through billing and setoffs against state income tax refunds.

13. Any person who has received any sum as benefits under the laws of another state, or under any unemployment benefit program of the United States administered by another state while any conditions for the receipt of benefits imposed by the law of such other state were not fulfilled in his or her case, shall after an opportunity for a fair hearing [under the provisions of] pursuant to subsection 2 of section 288.190 have such sums deducted from any further benefits payable to [him under this law] such person pursuant to this chapter, but only if there exists between this state and such other state a reciprocal agreement under which such entity agrees to recover benefit overpayments, in like fashion, on behalf of this state.

347.187. 1. A limited liability company created [under] pursuant to sections 347.010 to 347.187 or entering the state pursuant to sections 347.010 to 347.187 and its authorized persons, or their equivalent, shall have the duty to withhold and pay such taxes as are imposed by the laws of this state or any political subdivision thereof on a basis consistent with such limited liability company's classification as a partnership or association, as the case may be, [under] pursuant to Section 7701 of the Internal Revenue Code of 1986, as amended.

2. Solely for the purposes of chapter 143, RSMo, [and] chapter 144, RSMo, and chapter 288, RSMo, a limited liability company classified as a partnership for federal income tax purposes shall be deemed to be and treated as a partnership and its members shall be deemed to be and treated as partners and a limited liability company classified as an association for federal income tax purposes shall be deemed to be and treated as a corporation and its authorized persons shall be deemed to be and treated as officers or directors and its members as shareholders.

351.488. 1. A corporation administratively dissolved [under] pursuant to section 351.486 may apply to the secretary of state for reinstatement. The application must:

(1) Recite the name of the corporation and the effective date of its administrative dissolution;

(2) State that the ground or grounds for dissolution either did not exist or have been eliminated;

(3) State that the corporation's name satisfies the requirements of section 351.110;

(4) Contain a certificate from the department of revenue reciting that all taxes owed by the corporation, including all liabilities owed as determined by the division of employment security pursuant to chapter 288, RSMo, have been paid or that a tax payback plan has been arranged with the department of revenue for liabilities owed to the department of revenue and a tax payback plan has been arranged with the department of labor and industrial relations division of employment security for any liabilities owed as determined by the division of employment security pursuant to chapter 288, RSMo; and

(5) Be accompanied by a reinstatement fee in the amount of fifty dollars plus any delinquent fees, penalties, and charges that might have accrued.

2. If the secretary of state determines that the application contains the information and is accompanied by the fees required by subsection 1 of this section and that the information and fees are correct, [he] the secretary of state shall cancel the certificate of dissolution and prepare a certificate of reinstatement that recites his or her determination and the effective date of reinstatement, file the original of the certificate, and serve a copy on the corporation as provided in section 351.380.

3. When the reinstatement is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the corporation resumes carrying on its business as if the administrative dissolution had never occurred.

4. In the event the name was reissued prior to the time application for reinstatement was filed, the corporation applying for reinstatement may elect to reinstate using a new name that complies with the requirements of section 351.110, and that has been approved by appropriate action of the corporation for changing the name thereof.

358.150. 1. Except as provided in subsection 2 of this section, all partners are liable jointly and severally for everything chargeable to the partnership [under] pursuant to sections 358.130 and 358.140, and for all other debts and obligations of the partnership. Any partner may enter into a separate obligation to perform a partnership contract.

2. Subject to subsection 3 of this section, no partner in a registered limited liability partnership shall be liable or accountable, directly or indirectly, including by way of indemnification, contribution, assessment or otherwise, for any debts, obligations and liabilities of, or chargeable to, the partnership, whether in tort, contract or otherwise, which are incurred, created or assumed by such partnership while the partnership is a registered limited liability partnership.

3. Subsection 2 of this section shall not affect the liability of a partner in a registered limited liability partnership for the partner's own negligence, wrongful acts, omissions, misconduct or malpractice or that of any person under the partner's direct supervision and control or the partner's liability for any taxes or fees administered by the department of revenue pursuant to chapter 143, 144 or 301, RSMo, and any liabilities owed as determined by the division of employment security, pursuant to chapter 288, RSMo, and any local taxes provided for in section 32.087, RSMo.

4. A partner is not a proper party to a proceeding by or against a registered limited liability partnership, the object of which is to recover damages or enforce obligations arising out of acts, omissions, malpractice or misconduct of the type described in subsection 2 of this section, unless the partner is personally liable [under] pursuant to subsection 1 or 3 of this section.

5. A registered limited liability partnership may sue and be sued in its own name.

6. Venue of claims against registered limited liability partnerships shall be controlled pursuant to section 508.010, RSMo, and, for purposes of venue, a registered limited liability partnership shall be deemed to be a citizen and resident of the county in which it has any office or agent for the transaction of its usual and customary business activities or in which its registered office or registered agent is located.

7. Service of process upon a registered limited liability partnership may be had by delivering a copy of the summons and petition to the partnership's registered agent, a partner, managing or general agent or by leaving the copies at any business office of the registered limited liability partnership with the person having charge thereof.