An  Act concerning the employment security law; relating to employer contributions and
      disqualification for benefits; amending K.S.A. 1998 Supp. 44-706, 44-709 and 44-710a
      and repealing the existing sections; also repealing K.S.A. 44-709a.


     
Be it enacted by the Legislature of the State of Kansas:

      Section  1. K.S.A. 1998 Supp. 44-706 is hereby amended to read as
follows: 44-706. An individual shall be disqualified for benefits:

      (a) If the individual left work voluntarily without good cause attrib-
utable to the work or the employer, subject to the other provisions of this
subsection (a). After a temporary job assignment, failure of an individual
to affirmatively request an additional assignment on the next succeeding
workday, if required by the employment agreement, after completion of
a given work assignment, shall constitute leaving work voluntarily. The
disqualification shall begin the day following the separation and shall con-
tinue until after the individual has become reemployed and has had earn-
ings from insured work of at least three times the individual's weekly
benefit amount. An individual shall not be disqualified under this sub-
section (a) if:

      (1) The individual was forced to leave work because of illness or injury
upon the advice of a licensed and practicing health care provider and,
upon learning of the necessity for absence, immediately notified the em-
ployer thereof, or the employer consented to the absence, and after re-
covery from the illness or injury, when recovery was certified by a prac-
ticing health care provider, the individual returned to the employer and
offered to perform services and the individual's regular work or compa-
rable and suitable work was not available; as used in this paragraph (1)
"health care provider" means any person licensed by the proper licensing
authority of any state to engage in the practice of medicine and surgery,
osteopathy, chiropractic, dentistry, optometry, podiatry or psychology;

      (2) the individual left temporary work to return to the regular em-
ployer;

      (3) the individual left work to enlist in the armed forces of the United
States, but was rejected or delayed from entry;

      (4) the individual left work because of the voluntary or involuntary
transfer of the individual's spouse from one job to another job, which is
for the same employer or for a different employer, at a geographic loca-
tion which makes it unreasonable for the individual to continue work at
the individual's job;

      (5) the individual left work because of hazardous working conditions;
in determining whether or not working conditions are hazardous for an
individual, the degree of risk involved to the individual's health, safety
and morals, the individual's physical fitness and prior training and the
working conditions of workers engaged in the same or similar work for
the same and other employers in the locality shall be considered; as used
in this paragraph (5), "hazardous working conditions" means working con-
ditions that could result in a danger to the physical or mental well-being
of the individual; each determination as to whether hazardous working
conditions exist shall include, but shall not be limited to, a consideration
of (A) the safety measures used or the lack thereof, and (B) the condition
of equipment or lack of proper equipment; no work shall be considered
hazardous if the working conditions surrounding the individual's work are
the same or substantially the same as the working conditions generally
prevailing among individuals performing the same or similar work for
other employers engaged in the same or similar type of activity;

      (6) the individual left work to enter training approved under section
236(a)(1) of the federal trade act of 1974, provided the work left is not
of a substantially equal or higher skill level than the individual's past
adversely affected employment (as defined for purposes of the federal
trade act of 1974), and wages for such work are not less than 80% of the
individual's average weekly wage as determined for the purposes of the
federal trade act of 1974;

      (7) the individual left work because of unwelcome harassment of the
individual by the employer or another employee of which the employing
unit had knowledge;

      (8) the individual left work to accept better work; each determination
as to whether or not the work accepted is better work shall include, but
shall not be limited to, consideration of (A) the rate of pay, the hours of
work and the probable permanency of the work left as compared to the
work accepted, (B) the cost to the individual of getting to the work left
in comparison to the cost of getting to the work accepted, and (C) the
distance from the individual's place of residence to the work accepted in
comparison to the distance from the individual's residence to the work
left;

      (9) the individual left work as a result of being instructed or requested
by the employer, a supervisor or a fellow employee to perform a service
or commit an act in the scope of official job duties which is in violation
of an ordinance or statute;

      (10) the individual left work because of a violation of the work agree-
ment by the employing unit and, before the individual left, the individual
had exhausted all remedies provided in such agreement for the settlement
of disputes before terminating; or

      (11) after making reasonable efforts to preserve the work, the indi-
vidual left work due to a personal emergency of such nature and com-
pelling urgency that it would be contrary to good conscience to impose a
disqualification.

      (b) If the individual has been discharged for misconduct connected
with the individual's work. The disqualification shall begin the day follow-
ing the separation and shall continue until after the individual becomes
reemployed and has had earnings from insured work of at least three
times the individual's determined weekly benefit amount, except that if
an individual is discharged for gross misconduct connected with the in-
dividual's work, such individual shall be disqualified for benefits until such
individual again becomes employed and has had earnings from insured
work of at least eight times such individual's determined weekly benefit
amount. In addition, all wage credits attributable to the employment from
which the individual was discharged for gross misconduct connected with
the individual's work shall be canceled. No such cancellation of wage
credits shall affect prior payments made as a result of a prior separation.

      (1) For the purposes of this subsection (b), "misconduct" is defined
as a violation of a duty or obligation reasonably owed the employer as a
condition of employment. The term "gross misconduct" as used in this
subsection (b) shall be construed to mean conduct evincing extreme, will-
ful or wanton misconduct as defined by this subsection (b).

      (2) For the purposes of this subsection (b), the use of or impairment
caused by an alcoholic beverage, a cereal malt beverage or a nonprescri-
bed controlled substance by an individual while working shall be conclu-
sive evidence of misconduct and the possession of an alcoholic beverage,
a cereal malt beverage or a nonprescribed controlled substance by an
individual while working shall be prima facie evidence of conduct which
is a violation of a duty or obligation reasonably owed to the employer as
a condition of employment. For purposes of this subsection (b), the dis-
qualification of an individual from employment which disqualification is
required by the provisions of the drug free workplace act, 41 U.S.C. 701
et seq. or is otherwise required by law because the individual refused to
submit to or failed a chemical test which was required by law, shall be
conclusive evidence of misconduct. Refusal to submit to a chemical test
administered pursuant to an employee assistance program or other drug
or alcohol treatment program in which the individual was participating
voluntarily or as a condition of further employment shall also be conclu-
sive evidence of misconduct. Alcoholic liquor shall be defined as provided
in K.S.A. 41-102 and amendments thereto. Cereal malt beverage shall be
defined as provided in K.S.A. 41-2701 and amendments thereto. Con-
trolled substance shall be defined as provided in K.S.A. 65-4101 and
amendments thereto of the uniform controlled substances act. As used
in this subsection (b)(2), "required by law" means required by a federal
or state law, a federal or state rule or regulation having the force and
effect of law, a county resolution or municipal ordinance, or a policy
relating to public safety adopted in open meeting by the governing body
of any special district or other local governmental entity. An individual's
refusal to submit to a chemical test shall not be admissible evidence to
prove misconduct unless the test is required by and meets the standards
of the drug free workplace act, 41 U.S.C. 701 et seq., the test was ad-
ministered as part of an employee assistance program or other drug or
alcohol treatment program in which the employee was participating vol-
untarily or as a condition of further employment, the test was otherwise
required by law and the test constituted a required condition of employ-
ment for the individual's job, or, there was probable cause to believe that
the individual used, possessed or was impaired by an alcoholic beverage,
a cereal malt beverage or a controlled substance while working. The re-
sults of a chemical test shall not be admissible evidence to prove miscon-
duct unless the following conditions were met:

      (A) Either (i) the test was required by law, the test was administered
pursuant to the drug free workplace act, 41 U.S.C. 701 et seq., (ii) the
test was administered as part of an employee assistance program or other
drug or alcohol treatment program in which the employee was partici-
pating voluntarily or as a condition of further employment, (iii) the test
was required by law and the test constituted a required condition of em-
ployment for the individual's job, or (iv) there was probable cause to
believe that the individual used, had possession of, or was impaired by
the alcoholic beverage, the cereal malt beverage or the controlled sub-
stance while working;

      (B) the test sample was collected either (i) as prescribed by the drug
free workplace act, 41 U.S.C. 701 et seq., (ii) as prescribed by an em-
ployee assistance program or other drug or alcohol treatment program in
which the employee was participating voluntarily or as a condition of
further employment, (iii) as prescribed by a test which was required by
law and which constituted a required condition of employment for the
individual's job, or (iv) at a time contemporaneous with the events estab-
lishing probable cause;

      (C) the collecting and labeling of the test sample was performed by
a licensed health care professional or any other individual authorized to
collect or label test samples by federal or state law, or a federal or state
rule or regulation having the force and effect of law, including law en-
forcement personnel;

      (D) the test was performed by a laboratory approved by the United
States department of health and human services or licensed by the de-
partment of health and environment, except that a blood sample may be
tested for alcohol content by a laboratory commonly used for that purpose
by state law enforcement agencies;

      (E) the test was confirmed by gas chromatography, gas chromatog-
raphy-mass spectroscopy or other comparably reliable analytical method,
except that no such confirmation is required for a blood alcohol sample;
and

      (F) the foundation evidence must establish, beyond a reasonable
doubt, that the test results were from the sample taken from the individ-
ual.

      (3) For the purposes of this subsection (b), misconduct shall include,
but not be limited to repeated absence, including lateness, from sched-
uled work if the facts show:

      (A) The individual was absent without good cause;

      (B) the absence was in violation of the employer's written absentee-
ism policy;

      (C) the employer gave or sent written notice to the individual, at the
individual's last known address, that future absence may or will result in
discharge; and

      (D) the employee had knowledge of the employer's written absen-
teeism policy; and

      (E) if an employee disputes being absent without good cause, the em-
ployee shall present evidence that a majority of the employee's absences
were for good cause.

      (4) An individual shall not be disqualified under this subsection (b)
if the individual is discharged under the following circumstances:

      (A) The employer discharged the individual after learning the indi-
vidual was seeking other work or when the individual gave notice of future
intent to quit;

      (B) the individual was making a good-faith effort to do the assigned
work but was discharged due to: (i) Inefficiency, (ii) unsatisfactory per-
formance due to inability, incapacity or lack of training or experience, (iii)
isolated instances of ordinary negligence or inadvertence, (iv) good-faith
errors in judgment or discretion, or (v) unsatisfactory work or conduct
due to circumstances beyond the individual's control; or

      (C) the individual's refusal to perform work in excess of the contract
of hire.

      (c) If the individual has failed, without good cause, to either apply
for suitable work when so directed by the employment office of the sec-
retary of human resources, or to accept suitable work when offered to
the individual by the employment office, the secretary of human re-
sources, or an employer, such disqualification shall begin with the week
in which such failure occurred and shall continue until the individual
becomes reemployed and has had earnings from insured work of at least
three times such individual's determined weekly benefit amount. In de-
termining whether or not any work is suitable for an individual, the sec-
retary of human resources, or a person or persons designated by the
secretary, shall consider the degree of risk involved to health, safety and
morals, physical fitness and prior training, experience and prior earnings,
length of unemployment and prospects for securing local work in the
individual's customary occupation or work for which the individual is rea-
sonably fitted by training or experience, and the distance of the available
work from the individual's residence. Notwithstanding any other provi-
sions of this act, an otherwise eligible individual shall not be disqualified
for refusing an offer of suitable employment, or failing to apply for suit-
able employment when notified by an employment office, or for leaving
the individual's most recent work accepted during approved training, in-
cluding training approved under section 236(a)(1) of the trade act of 1974,
if the acceptance of or applying for suitable employment or continuing
such work would require the individual to terminate approved training
and no work shall be deemed suitable and benefits shall not be denied
under this act to any otherwise eligible individual for refusing to accept
new work under any of the following conditions: (1) If the position offered
is vacant due directly to a strike, lockout or other labor dispute; (2) if the
remuneration, hours or other conditions of the work offered are substan-
tially less favorable to the individual than those prevailing for similar work
in the locality; (3) if as a condition of being employed, the individual would
be required to join or to resign from or refrain from joining any labor
organization.

      (d) For any week with respect to which the secretary of human re-
sources, or a person or persons designated by the secretary, finds that the
individual's unemployment is due to a stoppage of work which exists be-
cause of a labor dispute or there would have been a work stoppage had
normal operations not been maintained with other personnel previously
and currently employed by the same employer at the factory, establish-
ment or other premises at which the individual is or was last employed,
except that this subsection (d) shall not apply if it is shown to the satis-
faction of the secretary of human resources, or a person or persons des-
ignated by the secretary, that: (1) The individual is not participating in or
financing or directly interested in the labor dispute which caused the
stoppage of work; and (2) the individual does not belong to a grade or
class of workers of which, immediately before the commencement of the
stoppage, there were members employed at the premises at which the
stoppage occurs any of whom are participating in or financing or directly
interested in the dispute. If in any case separate branches of work which
are commonly conducted as separate businesses in separate premises are
conducted in separate departments of the same premises, each such de-
partment shall, for the purpose of this subsection (d), be deemed to be
a separate factory, establishment or other premises. For the purposes of
this subsection (d), failure or refusal to cross a picket line or refusal for
any reason during the continuance of such labor dispute to accept the
individual's available and customary work at the factory, establishment or
other premises where the individual is or was last employed shall be
considered as participation and interest in the labor dispute.

      (e) For any week with respect to which or a part of which the indi-
vidual has received or is seeking unemployment benefits under the un-
employment compensation law of any other state or of the United States,
except that if the appropriate agency of such other state or the United
States finally determines that the individual is not entitled to such un-
employment benefits, this disqualification shall not apply.

      (f) For any week with respect to which the individual is entitled to
receive any unemployment allowance or compensation granted by the
United States under an act of congress to ex-service men and women in
recognition of former service with the military or naval services of the
United States.

      (g) For the period of one year beginning with the first day following
the last week of unemployment for which the individual received benefits,
or for one year from the date the act was committed, whichever is the
later, if the individual, or another in such individual's behalf with the
knowledge of the individual, has knowingly made a false statement or
representation, or has knowingly failed to disclose a material fact to obtain
or increase benefits under this act or any other unemployment compen-
sation law administered by the secretary of human resources.

      (h) For any week with respect to which the individual is receiving
compensation for temporary total disability or permanent total disability
under the workmen's compensation law of any state or under a similar
law of the United States.

      (i) For any week of unemployment on the basis of service in an in-
structional, research or principal administrative capacity for an educa-
tional institution as defined in subsection (v) of K.S.A. 44-703 and amend-
ments thereto, if such week begins during the period between two
successive academic years or terms or, when an agreement provides in-
stead for a similar period between two regular but not successive terms
during such period or during a period of paid sabbatical leave provided
for in the individual's contract, if the individual performs such services in
the first of such academic years or terms and there is a contract or a
reasonable assurance that such individual will perform services in any
such capacity for any educational institution in the second of such aca-
demic years or terms.

      (j) For any week of unemployment on the basis of service in any
capacity other than service in an instructional, research, or administrative
capacity in an educational institution, as defined in subsection (v) of
K.S.A. 44-703 and amendments thereto, if such week begins during the
period between two successive academic years or terms if the individual
performs such services in the first of such academic years or terms and
there is a reasonable assurance that the individual will perform such serv-
ices in the second of such academic years or terms, except that if benefits
are denied to the individual under this subsection (j) and the individual
was not offered an opportunity to perform such services for the educa-
tional institution for the second of such academic years or terms, such
individual shall be entitled to a retroactive payment of benefits for each
week for which the individual filed a timely claim for benefits and for
which benefits were denied solely by reason of this subsection (j).

      (k) For any week of unemployment on the basis of service in any
capacity for an educational institution as defined in subsection (v) of
K.S.A. 44-703 and amendments thereto, if such week begins during an
established and customary vacation period or holiday recess, if the indi-
vidual performs services in the period immediately before such vacation
period or holiday recess and there is a reasonable assurance that such
individual will perform such services in the period immediately following
such vacation period or holiday recess.

      (l) For any week of unemployment on the basis of any services, sub-
stantially all of which consist of participating in sports or athletic events
or training or preparing to so participate, if such week begins during the
period between two successive sport seasons or similar period if such
individual performed services in the first of such seasons or similar per-
iods and there is a reasonable assurance that such individual will perform
such services in the later of such seasons or similar periods.

      (m) For any week on the basis of services performed by an alien
unless such alien is an individual who was lawfully admitted for perma-
nent residence at the time such services were performed, was lawfully
present for purposes of performing such services, or was permanently
residing in the United States under color of law at the time such services
were performed, including an alien who was lawfully present in the
United States as a result of the application of the provisions of section
212(d)(5) of the federal immigration and nationality act. Any data or in-
formation required of individuals applying for benefits to determine
whether benefits are not payable to them because of their alien status
shall be uniformly required from all applicants for benefits. In the case
of an individual whose application for benefits would otherwise be ap-
proved, no determination that benefits to such individual are not payable
because of such individual's alien status shall be made except upon a
preponderance of the evidence.

      (n) For any week in which an individual is receiving a governmental
or other pension, retirement or retired pay, annuity or other similar pe-
riodic payment under a plan maintained by a base period employer and
to which the entire contributions were provided by such employer, except
that: (1) If the entire contributions to such plan were provided by the
base period employer but such individual's weekly benefit amount ex-
ceeds such governmental or other pension, retirement or retired pay,
annuity or other similar periodic payment attributable to such week, the
weekly benefit amount payable to the individual shall be reduced (but
not below zero) by an amount equal to the amount of such pension,
retirement or retired pay, annuity or other similar periodic payment
which is attributable to such week; or (2) if only a portion of contributions
to such plan were provided by the base period employer, the weekly
benefit amount payable to such individual for such week shall be reduced
(but not below zero) by the prorated weekly amount of the pension, re-
tirement or retired pay, annuity or other similar periodic payment after
deduction of that portion of the pension, retirement or retired pay, an-
nuity or other similar periodic payment that is directly attributable to the
percentage of the contributions made to the plan by such individual; or
(3) if the entire contributions to the plan were provided by such individ-
ual, or by the individual and an employer (or any person or organization)
who is not a base period employer, no reduction in the weekly benefit
amount payable to the individual for such week shall be made under this
subsection (n); or (4) whatever portion of contributions to such plan were
provided by the base period employer, if the services performed for the
employer by such individual during the base period, or remuneration
received for the services, did not affect the individual's eligibility for, or
increased the amount of, such pension, retirement or retired pay, annuity
or other similar periodic payment, no reduction in the weekly benefit
amount payable to the individual for such week shall be made under this
subsection (n). The conditions specified in clause (4) of this subsection
(n) shall not apply to payments made under the social security act or the
railroad retirement act of 1974, or the corresponding provisions of prior
law. Payments made under these acts shall be treated as otherwise pro-
vided in this subsection (n). If the reduced weekly benefit amount is not
a multiple of $1, it shall be reduced to the next lower multiple of $1.

      (o) For any week of unemployment on the basis of services per-
formed in any capacity and under any of the circumstances described in
subsection (i), (j) or (k) which an individual performed in an educational
institution while in the employ of an educational service agency. For the
purposes of this subsection (o), the term "educational service agency"
means a governmental agency or entity which is established and operated
exclusively for the purpose of providing such services to one or more
educational institutions.

      (p) For any week of unemployment on the basis of service as a school
bus or other motor vehicle driver employed by a private contractor to
transport pupils, students and school personnel to or from school-related
functions or activities for an educational institution, as defined in subsec-
tion (v) of K.S.A. 44-703 and amendments thereto, if such week begins
during the period between two successive academic years or during a
similar period between two regular terms, whether or not successive, if
the individual has a contract or contracts, or a reasonable assurance
thereof, to perform services in any such capacity with a private contractor
for any educational institution for both such academic years or both such
terms. An individual shall not be disqualified for benefits as provided in
this subsection (p) for any week of unemployment on the basis of service
as a bus or other motor vehicle driver employed by a private contractor
to transport persons to or from nonschool-related functions or activities.

      (q) For any week of unemployment on the basis of services per-
formed by the individual in any capacity and under any of the circum-
stances described in subsection (i), (j), (k) or (o) which are provided to
or on behalf of an educational institution, as defined in subsection (v) of
K.S.A. 44-703 and amendments thereto, while the individual is in the
employ of an employer which is a governmental entity or any employer
described in section 501(c)(3) of the federal internal revenue code of 1986
which is exempt from income under section 501(a) of the code.

      (r) For any week in which an individual is registered at and attending
an established school, training facility or other educational institution, or
is on vacation during or between two successive academic years or terms.
An individual shall not be disqualified for benefits as provided in this
subsection (r) provided:

      (1) The individual was engaged in full-time employment concurrent
with the individual's school attendance; or

      (2) the individual is attending approved training as defined in sub-
section (s) of K.S.A. 44-703 and amendments thereto; or

      (3) the individual is attending evening, weekend or limited day time
classes, which would not affect availability for work, and is otherwise
eligible under subsection (c) of K.S.A. 44-705 and amendments thereto.

      (s) For any week with respect to which an individual is receiving or
has received remuneration in the form of a back pay award or settlement.
The remuneration shall be allocated to the week or weeks in the manner
as specified in the award or agreement, or in the absence of such speci-
ficity in the award or agreement, such remuneration shall be allocated to
the week or weeks in which such remuneration, in the judgment of the
secretary, would have been paid.

      (1) For any such weeks that an individual receives remuneration in
the form of a back pay award or settlement, an overpayment will be
established in the amount of unemployment benefits paid and shall be
collected from the claimant.

      (2) If an employer chooses to withhold from a back pay award or
settlement, amounts paid to a claimant while they claimed unemployment
benefits, such employer shall pay the department the amount withheld.
With respect to such amount, the secretary shall have available all of the
collection remedies authorized or provided in section K.S.A. 44-717, and
amendments thereto.

      Sec.  2. K.S.A. 1998 Supp. 44-709 is hereby amended to read as fol-
lows: 44-709. (a) Filing. Claims for benefits shall be made in accordance
with rules and regulations adopted by the secretary. The secretary shall
furnish a copy of such rules and regulations to any individual requesting
them. Each employer shall post and maintain printed statements fur-
nished by the secretary without cost to the employer in places readily
accessible to individuals in the service of the employer.

      (b) Determination. (1) Except as otherwise provided in this subsec-
tion (b)(1), a representative designated by the secretary, and hereinafter
referred to as an examiner, shall promptly examine the claim and, on the
basis of the facts found by the examiner, shall determine whether or not
the claim is valid. If the examiner determines that the claim is valid, the
examiner shall determine the first day of the benefit year, the weekly
benefit amount and the total amount of benefits payable with respect to
the benefit year. If the claim is determined to be valid, the examiner shall
send a notice to the last employing unit who shall respond within 10 days
by providing the examiner all requested information including all infor-
mation required for a decision under K.S.A. 44-706 and amendments
thereto. The information may be submitted by the employing unit in
person at an employment office of the secretary or by mail, by telefacsi-
mile machine or by electronic mail. If the required information is not
submitted or postmarked within a response time limit of 10 days after
the examiner's notice was sent, the employing unit shall be deemed to
have waived its standing as a party to the proceedings arising from the
claim and shall be barred from protesting any subsequent decisions about
the claim by the secretary, a referee, the board of review or any court,
except that the employing unit's response time limit may be waived or
extended by the examiner or upon appeal, if timely response was impos-
sible due to excusable neglect. In any case in which the payment or denial
of benefits will be determined by the provisions of subsection (d) of K.S.A.
44-706 and amendments thereto, the examiner shall promptly transmit
the claim to a special examiner designated by the secretary to make a
determination on the claim after the investigation as the special examiner
deems necessary. The parties shall be promptly notified of the special
examiner's decision and any party aggrieved by the decision may appeal
to the referee as provided in subsection (c). The claimant and the claim-
ant's most recent employing unit shall be promptly notified of the ex-
aminer's or special examiner's decision.

      (2) The examiner may for good cause reconsider the examiner's de-
cision and shall promptly notify the claimant and the most recent em-
ploying unit of the claimant, that the decision of the examiner is to be
reconsidered, except that no reconsideration shall be made after the ter-
mination of the benefit year.

      (3) Notwithstanding the provisions of any other statute, a decision of
an examiner or special examiner shall be final unless the claimant or the
most recent employing unit of the claimant files an appeal from the de-
cision as provided in subsection (c). The appeal must be filed within 16
calendar days after the mailing of notice to the last known addresses of
the claimant and employing unit or, if notice is not by mail, within 16
calendar days after the delivery of the notice to the parties.

      (c) Appeals. Unless the appeal is withdrawn, a referee, after affording
the parties reasonable opportunity for fair hearing, shall affirm or modify
the findings of fact and decision of the examiner or special examiner. The
parties shall be duly notified of the referee's decision, together with the
reasons for the decision. The decision shall be final, notwithstanding the
provisions of any other statute, unless a further appeal to the board of
review is filed within 16 calendar days after the mailing of the decision
to the parties' last known addresses or, if notice is not by mail, within 16
calendar days after the delivery of the decision.

      (d) Referees. The secretary shall appoint, in accordance with subsec-
tion (c) of K.S.A. 44-714 and amendments thereto, one or more referees
to hear and decide disputed claims.

      (e) Time, computation and extension. In computing the period of
time for an employing unit response or for appeals under this section
from the examiner's or the special examiner's determination or from the
referee's decision, the day of the act, event or default from which the
designated period of time begins to run shall not be included. The last
day of the period shall be included unless it is a Saturday, Sunday or legal
holiday, in which event the period runs until the end of the next day
which is not a Saturday, Sunday or legal holiday.

      (f) Board of review. (1) There is hereby created a board of review,
hereinafter referred to as the board, consisting of three members. Except
as provided by paragraph (2) of this subsection, each member of the board
shall be appointed for a term of four years as provided in this subsection.
Two members shall be appointed by the governor, subject to confirmation
by the senate as provided in K.S.A. 75-4315b and amendments thereto.
Except as provided by K.S.A. 1998 Supp. 46-2601, no person appointed
to the board, whose appointment is subject to confirmation by the senate,
shall exercise any power, duty or function as a member until confirmed
by the senate. One member shall be representative of employees, one
member shall be representative of employers, and one member shall be
representative of the public in general. The appointment of the employee
representative member of the board shall be made by the governor from
a list of three nominations submitted by the Kansas A.F.L.-C.I.O. The
appointment of the employer representative member of the board shall
be made by the governor from a list of three nominations submitted by
the Kansas chamber of commerce and industry. The appointment of the
public representative member of the board, who, because of vocation,
occupation or affiliation may be deemed not to be representative of either
management or labor, shall be made by the members appointed by the
governor as employee representative and employer representative. If the
two members do not agree and fail to make the appointment of the public
member within 30 days after the expiration of the public member's term
of office, the governor shall appoint the representative of the public. Not
more than two members of the board shall belong to the same political
party.

      (2) The terms of members who are serving on the board on the ef-
fective date of this act shall expire on March 15, of the year in which such
member's term would have expired under the provisions of this section
prior to amendment by this act. Thereafter, members shall be appointed
for terms of four years and until their successors are appointed and con-
firmed.

      (3) Each member of the board shall serve until a successor has been
appointed and confirmed. Any vacancy in the membership of the board
occurring prior to expiration of a term shall be filled by appointment for
the unexpired term in the same manner as provided for original appoint-
ment of the member. Each member shall be appointed as representative
of the same special interest group represented by the predecessor of the
member.

      (4) Each member of the board shall be entitled to receive as com-
pensation for the member's services at the rate of $15,000 per year, which
rate of compensation shall be effective retroactively to the beginning of
the first payroll period chargeable to the fiscal year ending June 30, 1994,
together with the member's travel and other necessary expenses actually
incurred in the performance of the member's official duties in accordance
with rules and regulations adopted by the secretary. Members' compen-
sation and expenses shall be paid from the employment security admin-
istration fund.

      (5) The board shall organize annually by the election of a chairperson
from among its members. The chairperson shall serve in that capacity for
a term of one year and until a successor is elected. The board shall meet
on the first Monday of each month or on the call of the chairperson or
any two members of the board at the place designated. The secretary of
human resources shall appoint an executive secretary of the board and
the executive secretary shall attend the meetings of the board.

      (6) The board, on its own motion, may affirm, modify or set aside any
decision of a referee on the basis of the evidence previously submitted in
the case; may direct the taking of additional evidence; or may permit any
of the parties to initiate further appeal before it. The board shall permit
such further appeal by any of the parties interested in a decision of a
referee which overrules or modifies the decision of an examiner. The
board may remove to itself the proceedings on any claim pending before
a referee. Any proceedings so removed to the board shall be heard in
accordance with the requirements of subsection (c). The board shall
promptly notify the interested parties of its findings and decision.

      (7) Two members of the board shall constitute a quorum and no
action of the board shall be valid unless it has the concurrence of at least
two members. A vacancy on the board shall not impair the right of a
quorum to exercise all the rights and perform all the duties of the board.

      (g) Procedure. The manner in which disputed claims are presented,
the reports on claims required from the claimant and from employers
and the conduct of hearings and appeals shall be in accordance with rules
of procedure prescribed by the board for determining the rights of the
parties, whether or not such rules conform to common law or statutory
rules of evidence and other technical rules of procedure. A full and com-
plete record shall be kept of all proceedings and decisions in connection
with a disputed claim. All testimony at any hearing upon a disputed claim
shall be recorded, but need not be transcribed unless the disputed claim
is further appealed. In the performance of its official duties, the board
shall have access to all of the records which pertain to the disputed claim
and are in the custody of the secretary of human resources and shall
receive the assistance of the secretary upon request.

      (h) Witness fees. Witnesses subpoenaed pursuant to this section shall
be allowed fees and necessary travel expenses at rates fixed by the board.
Such fees and expenses shall be deemed a part of the expense of admin-
istering this act.

      (i) Court review. Any action of the board is subject to review in ac-
cordance with the act for judicial review and civil enforcement of agency
actions. No bond shall be required for commencing an action for such
review. In the absence of an action for such review, the action of the
board shall become final 16 calendar days after the date of the mailing
of the decision. In addition to those persons having standing pursuant to
K.S.A. 77-611 and amendments thereto, the examiner shall have standing
to obtain judicial review of an action of the board. The review proceeding,
and the questions of law certified, shall be heard in a summary manner
and shall be given precedence over all other civil cases except cases arising
under the workers compensation act.

      (j) Any finding of fact or law, judgment, determination, conclusion or
final order made by the board of review or any examiner, special exam-
iner, referee or other person with authority to make findings of fact or
law pursuant to the employment security law is not admissible or binding
in any separate or subsequent action or proceeding, between a person
and a present or previous employer brought before an arbitrator, court
or judge of the state or the United States, regardless of whether the prior
action was between the same or related parties or involved the same facts.

      (k) In any proceeding or hearing conducted under this section, a
party to the proceeding or hearing may appear before a referee or the
board either personally or by means of a designated representative to
present evidence and to state the position of the party. Hearings may be
conducted in person, by telephone or other means of electronic commu-
nication. The hearing shall be conducted by telephone or other means of
electronic communication if none of the parties requests an in-person
hearing. If only one party requests an in-person hearing, the referee shall
have the discretion of requiring all parties to appear in person or allow
the party not requesting an in-person hearing to appear by telephone or
other means of electronic communication. The notice of hearing shall in-
clude notice to the parties of their right to request an in-person hearing
and instructions on how to make the request.

      Sec.  3. K.S.A. 1998 Supp. 44-710a is hereby amended to read as
follows: 44-710a. (a) Classification of employers by the secretary. The
term "employer" as used in this section refers to contributing employers.
The secretary shall classify employers in accordance with their actual ex-
perience in the payment of contributions on their own behalf and with
respect to benefits charged against their accounts with a view of fixing
such contribution rates as will reflect such experience. If, as of the date
such classification of employers is made, the secretary finds that any em-
ploying unit has failed to file any report required in connection therewith,
or has filed a report which the secretary finds incorrect or insufficient,
the secretary shall make an estimate of the information required from
such employing unit on the basis of the best evidence reasonably available
to the secretary at the time, and notify the employing unit thereof by mail
addressed to its last known address. Unless such employing unit shall file
the report or a corrected or sufficient report as the case may be, within
15 days after the mailing of such notice, the secretary shall compute such
employing unit's rate of contributions on the basis of such estimates, and
the rate as so determined shall be subject to increase but not to reduction
on the basis of subsequently ascertained information. The secretary shall
determine the contribution rate of each employer in accordance with the
requirements of this section.

      (1) New employers. (A) No employer will be eligible for a rate com-
putation until there have been 24 consecutive calendar months immedi-
ately preceding the computation date throughout which benefits could
have been charged against such employer's account.

      (B)  (i) Employers who are not eligible for a rate computation shall
pay contributions at an assigned rate equal to the sum of 1% plus the
greater of the average rate assigned in the preceding calendar year to all
employers in such industry division or the average rate assigned to all
covered employers during the preceding calendar year, except that in no
instance shall any such assigned rate be less than 2%. Employers engaged
in more than one type of industrial activity shall be classified by principal
activity. All rates assigned will remain in effect for a complete calendar
year. If the sale or acquisition of a new establishment would require re-
classification of the employer to a different industry division, the em-
ployer would be promptly notified, and the contribution rate applicable
to the new industry division would become effective the following January
1. For rate years 1995, 1996, 1997, 1998 and 1999 all employers who are
not eligible for rate computation shall pay contributions at the rate of 1%.
However, for rate year 1996, 1997, 1998 and 1999 the 1% contribution
rate for all employers who are not eligible for a rate computation shall
not be effective if the reserve fund ratio in column A of schedule III as
determined by this section is less than 1.75%.

      (ii) For purposes of this subsection (a), employers shall be classified
by industrial activity in accordance with standard procedures as set forth
in rules and regulations adopted by the secretary.

      (C) "Computation date" means June 30 of each calendar year with
respect to rates of contribution applicable to the calendar year beginning
with the following January 1. In arriving at contribution rates for each
calendar year, contributions paid on or before July 31 following the com-
putation date for employment occurring on or prior to the computation
date shall be considered for each contributing employer who has been
subject to this act for a sufficient period of time to have such employer's
rate computed under this subsection (a).

      (2) Eligible employers. (A) A reserve ratio shall be computed for each
eligible employer by the following method: Total benefits charged to the
employer's account for all past years shall be deducted from all contri-
butions paid by such employer for all such years. The balance, positive
or negative, shall be divided by the employer's average annual payroll,
and the result shall constitute the employer reserve ratio.

      (B) Negative account balance employers as defined in subsection (d)
shall pay contributions at the rate of 5.4% for each calendar year. How-
ever, for rate years 1996, 1997, 1998 and 1999 all negative account bal-
ance eligible employers will be assigned rates and pay contributions in
accordance with the following schedule.

                                                                        SCHEDULE IIA
            Rate Group                                            Reserve Ratio                              Effective Rates

                                                                Negative Eligible Accounts

      (C) Eligible employers, other than negative account balance employ-
ers, who do not meet the average annual payroll requirements as stated
in subsection (a)(2) of K.S.A. 44-703 and amendments thereto, will be
issued the maximum rate indicated in subsection (a)(3)(C) of this section
until such employer establishes a new period of 24 consecutive calendar
months immediately preceding the computation date throughout which
benefits could have been charged against such employer's account by
resuming the payment of wages. Contribution rates effective for each
calendar year thereafter shall be determined as prescribed below.

      (D) As of each computation date, the total of the taxable wages paid
during the twelve-month period prior to the computation date by all em-
ployers eligible for rate computation, except negative account balance
employers, shall be divided into 51 approximately equal parts designated
in column A of schedule I as "rate groups," except, with regard to a year
in which the taxable wage base changes. The taxable wages used in the
calculation for such a year and the following year shall be an estimate of
what the taxable wages would have been if the new taxable wage base
had been in effect during the entire twelve-month period prior to the
computation date. The lowest numbered of such rate groups shall consist
of the employers with the most favorable reserve ratios, as defined in this
section, whose combined taxable wages paid are less than 1.96% of all
taxable wages paid by all eligible employers. Each succeeding higher
numbered rate group shall consist of employers with reserve ratios that
are less favorable than those of employers in the preceding lower num-
bered rate groups and whose taxable wages when combined with the
taxable wages of employers in all lower numbered rate groups equal the
appropriate percentage of total taxable wages designated in column B of
schedule I. Each eligible employer, other than a negative account balance
employer, shall be assigned an experience factor designated under col-
umn C of schedule I in accordance with the rate group to which the
employer is assigned on the basis of the employer's reserve ratio and
taxable payroll. If an employer's taxable payroll falls into more than one
rate group the employer shall be assigned the experience factor of the
lower numbered rate group. If one or more employers have reserve ratios
identical to that of the last employer included in the next lower numbered
rate group, all such employers shall be assigned the experience factor
designated to such last employer, notwithstanding the position of their
taxable payroll in column B of schedule I.

                                                      SCHEDULE I--Eligible Employers
     Column A                        Column B                                                   Column C
          Rate                             Cumulative                                           Experience factor
         group                             taxable payroll                                    (Ratio to total wages)

      (E) Negative account balance employers shall, in addition to paying
the rate provided for in subsection (a)(2)(B) of this section, except for
rate years 1996, 1997, 1998 and 1999, pay a surcharge based on the size
of the employer's negative reserve ratio, the calculation which is provided
for in subsection (a)(2) of this section. The amount of the surcharge shall
be determined from column B of schedule II of this section. Each neg-
ative account balance employer who does not satisfy the requirements to
have an average annual payroll, as defined by subsection (a)(2) of K.S.A.
44-703 and amendments thereto, shall be assigned a surcharge of 1% 2%.
Contribution payments made pursuant to this subsection (a)(2)(E) shall
be credited to the appropriate account of such negative account balance
employer.

                        SCHEDULE II--Surcharge on Negative Accounts

Column A                                                                                       Column B
Negative Reserve Ratio                                               Surcharge as a percent
                                                                                          of taxable wages

      (3) Planned yield. (A) For rate year 1995, and all years thereafter, the
average required yield shall be determined from schedule III of this sec-
tion, and the planned yield on total wages in column B of schedule III
shall be determined by the reserve fund ratio in column A of schedule
III. The reserve fund ratio shall be determined by dividing total assets in
the employment security fund provided for in subsection (a) of K.S.A.
44-712 and amendments thereto, excluding all moneys credited to the
account of this state pursuant to section 903 of the federal social security
act, as amended, which have been appropriated by the state legislature,
whether or not withdrawn from the trust fund, and excluding contribu-
tions not yet paid on July 31 by total payrolls for contributing employers
for the preceding fiscal year which ended June 30. For rate years 2000,
2001 and 2002, schedule IIIA shall apply.

                                                      SCHEDULE IIIA--Fund Control
                                                                Ratios to Total Wages

Column A                                                                                            Column B
Reserve Fund Ratio                                                                     Planned Yield

                                               SCHEDULE III--Fund Control
                                                      Ratios to Total Wages

Column A                                                                                             Column B
Reserve Fund Ratio                                                                       Planned Yield

      (B) Adjustment to taxable wages. The planned yield as a percent of
total wages, as determined in this subsection (a)(3), shall be adjusted to
taxable wages by multiplying by the ratio of total wages to taxable wages
for all contributing employers for the preceding fiscal year ending June
30, except, with regard to a year in which the taxable wage base changes.
The taxable wages used in the calculation for such a year and the following
year shall be an estimate of what the taxable wages would have been if
the new taxable wage base had been in effect during all of the preceding
fiscal year ending June 30.

      (C) Effective rates. Except with regard to rates for negative account
balance employers, employer contribution rates to be effective for the
ensuing calendar year shall be computed by adjusting proportionately the
experience factors from schedule I of this section to the required yield
on taxable wages. For the purposes of this subsection (a)(3), all rates
computed shall be rounded to the nearest .01% and for calendar year
1983 and ensuing calendar years, the maximum effective contribution rate
shall not exceed 5.4%. For rate years 1995, 1996, 1997, 1998 and 1999,
employers, who are current in filing of all reports and in payment of all
contributions due, shall be issued a contributions rate of 0%. To be eli-
gible for the 0% rate for rate year 1995, an employer must file all delin-
quent reports and pay all contributions due within a 30-day period fol-
lowing the date of mailing of the amended rating notice. For rate year
1996, 1997, 1998 and 1999 in order to be eligible for the 0% rate, em-
ployers must file all reports due and pay all contributions due on or before
January 31, 1996, January 31, 1997, January 31, 1998 and January 31,
1999, respectively. However, for rate year 1996, 1997, 1998 and 1999 the
0% contribution rate for such eligible employers shall not be effective if
the reserve fund ratio in column A of schedule III as determined by this
section is less than 1.75%. For rate years 1996, 1997, 1998 and 1999 the
rates in schedule IIA shall apply unless the reserve fund ratio in column
A of schedule III as determined by this section is less than 1.75%. On
January 15 of 2000, 2001 and 2002, the secretary shall report to the
legislature concerning the adequacy of the fund. On July 15 of 2000, 2001
and 2002, the secretary shall make the same report to the legislative co-
ordinating council. As a part of such report, the secretary shall include
any recommendations for adjustment of schedule IIIA.

      (b) Successor classification. (1) For the purposes of this subsection
(b), whenever an employing unit, whether or not it is an "employing unit"
within the meaning of subsection (g) of K.S.A. 44-703 and amendments
thereto, becomes an employer pursuant to subsection (h)(4) of K.S.A. 44-
703 and amendments thereto or is an employer at the time of acquisition
and meets the definition of a "successor employer" as defined by sub-
section (dd) of K.S.A. 44-703 and amendments thereto and is controlled
substantially either directly or indirectly by legally enforceable means or
otherwise by the same interest or interests, shall acquire the experience
rating factors of the predecessor employer. These factors consist of all
contributions paid, benefit experience and annual payrolls of the prede-
cessor employer.

      (2) A successor employer as defined by subsection (h)(4) or subsec-
tion (dd) of K.S.A. 44-703 and amendments thereto may receive the ex-
perience rating factors of the predecessor employer if an application is
made to the secretary or the secretary's designee in writing within 120
days of the date of the transfer.

      (3) Whenever an employing unit, whether or not it is an "employing
unit" within the meaning of subsection (g) of K.S.A. 44-703 and amend-
ments thereto, acquires or in any manner succeeds to a percentage of an
employer's annual payroll which is less than 100% and intends to continue
the acquired percentage as a going business, (A) shall acquire the same
percentage of the predecessor's experience factors if the employer is con-
trolled substantially, either directly or indirectly or by legally enforceable
means or otherwise, by the same interest or interests or (B) may acquire
the same percentage of the predecessor's experience factors if: (i) The
predecessor employer and successor employing unit make an application
in writing on the form prescribed by the secretary, (ii) the application is
submitted within 120 days of the date of the transfer, (iii) the successor
employing unit is or becomes an employer subject to this act immediately
after the transfer, (iv) the percentage of the experience rating factors
transferred shall not be thereafter used in computing the contribution
rate for the predecessor employer, and (v) the secretary finds that such
transfer will not tend to defeat or obstruct the object and purposes of this
act.

      (4) If the acquiring employing unit was an employer subject to this
act prior to the date of the transfer, the rate of contribution for the period
from such date to the end of the then current contribution year shall be
the same as the contribution rate prior to the date of the transfer. An
employing unit which was not subject to this act prior to the date of the
transfer shall have a newly computed rate based on the transferred ex-
perience rating factors as of the computation date immediately preceding
the date of acquisition. These experience rating factors consist of all con-
tributions paid, benefit experience and annual payrolls.

      (5) Whenever an employer's account has been terminated as pro-
vided in subsections (d) and (e) of K.S.A. 44-711 and amendments thereto
and the employer continues with employment to liquidate the business
operations, that employer shall continue to be an "employer" subject to
the employment security law as provided in subsection (h)(8) of K.S.A.
44-703 and amendments thereto. The rate of contribution from the date
of transfer to the end of the then current calendar year shall be the same
as the contribution rate prior to the date of the transfer. At the completion
of the then current calendar year, the rate of contribution shall be that
of a "new employer" as described in subsection (a)(1) of this section.

      (6) No rate computation will be permitted an employing unit suc-
ceeding to the experience of another employing unit pursuant to this
section for any period subsequent to such succession except in accordance
with rules and regulations adopted by the secretary. Any such regulations
shall be consistent with federal requirements for additional credit allow-
ance in section 3303 of the federal internal revenue code of 1986, and
consistent with the provisions of this act.

      (c) Voluntary contributions. Notwithstanding any other provision of
the employment security law, any employer may make voluntary pay-
ments for the purpose of reducing or maintaining a reduced rate in ad-
dition to the contributions required under this section. Such voluntary
payments may be made only during the thirty-day period immediately
following the date of mailing of experience rating notices for a calendar
year. All such voluntary contribution payments shall be paid prior to the
expiration of 120 days after the beginning of the year for which such rates
are effective. The amount of voluntary contributions shall be credited to
the employer's account as of the next preceding computation date and
the employer's rate shall be computed accordingly, except that no em-
ployer's rate shall be reduced more than five rate groups as provided in
schedule I of this section as the result of a voluntary payment. An em-
ployer not having a negative account balance may have such employer's
rate reduced not more than five rate groups as provided in schedule I of
this section as a result of a voluntary payment. An employer having a
negative account balance may have such employer's rate reduced to that
prescribed for rate group 51 of schedule I of this section by making a
voluntary payment in the amount of such negative account balance or to
that rate prescribed for rate groups 50 through 47 of schedule I of this
section by making an additional voluntary payment that would increase
such employer's reserve ratio to the lower limit required for such rate
groups 50 through 47. Under no circumstances shall voluntary payments
be refunded in whole or in part.

      (d) As used in this section, "negative account balance employer"
means an eligible employer whose total benefits charged to such em-
ployer's account for all past years have exceeded all contributions paid by
such employer for all such years.

      (e) The secretary of human resources shall annually prepare and sub-
mit a certification as to the solvency and adequacy of the amount credited
to the state of Kansas' account in the federal employment security trust
fund to the governor and the employment security advisory council. Com-
mencing in calendar year 1994, the certification shall be submitted on or
before December 1 of each calendar year and shall be for the twelve-
month period ending on June 30 of that calendar year. In arriving at the
certification contributions paid on or before July 31 following the twelve-
month period ending date of June 30 shall be considered. Each certifi-
cation shall be used to determine the need for any adjustment to schedule
III in subsection (a)(3)(A) and to assist in preparing legislation to accom-
plish any such adjustment.

      Sec.  4. K.S.A. 44-709a and K.S.A. 1998 Supp. 44-706, 44-709 and
44-710a are hereby repealed.

      Sec.  5. This act shall take effect and be in force from and after its
publication in the statute book.

I hereby certify that the above BILL originated in the
SENATE, and passed that body

____________________________________

SENATE adopted
  Conference Committee Report ______________________________

Passed the HOUSE
     as amended ______________________________

HOUSE adopted
  Conference Committee Report ______________________________

APPROVED ______________________________