Chap. 317.—An ACT to amend and re-enact Sections 2, 3, 4, 5, 6, 7, 12, 14, and 16
of Chapter 1 of the Acts of the General Assembly of Virginia, extra session,
1936-37, approved December 18, 1936, as heretofore amended, and known, desig-
nated and cited as the Virginia Unemployment Compensation Act, said sections
relating to definitions, benefits, benefit eligibility conditions, disqualification for
benefits, claims for benefits, contributions, employment service, collection of
contributions, and penalties, so as, among other purposes, to make certain
changes therein, especially with respect to definitions of employment, and to
provide for the protection of benefit rights of persons in the military service of
the United States, to change the minimum benefits payable, to provide for a
Board of Review, to provide for appeals to the Supreme Court of Appeals in
certain cases, to add a new provision relating to determination of liability, to
provide for adjustments in rate of contributions in case of certain amendments to
the Federal statutes relating to unemployment compensation tax, and to repeal
the provision requiring the Commissioner of Labor shall be chief executive of
the Virginia State Employment Service. [S B 202]

Approved March 30, 1942

1. Beit enacted by the General Assembly of Virginia, That sections
two, three, four, five, six, seven, twelve, fourteen, and sixteen of chapter
one of the Acts of the General Assembly of Virginia, extra session, nine-
teen hundred and thirty-six, nineteen hundred and thirty-seven, approved
December eighteenth, nineteen hundred and thirty-six, as heretofore
amended, and known, designated and cited as the Virginia Unemploy-
ment Compensation Act, be amended and re-enacted so as to read as fol-
lows:

Section 2. Definitions.—As used in this act, unless the context clear-
ly requires otherwise: ,

(a) (1) “Annual pay roll” means the total amount of wages
payable by an employer, regardless of the time of payment, for employ-
ment during a calendar year.

(2) “Average annual pay roll” means the average of the annual
pay rolls of any employer for the last three or five preceding calendar
years, whichever is higher.

(b) The “base period” means the calendar year immediately pre-
ceding the beginning of a benefit year.

(c) “Benefits” means the money payments payable to an indi-
vidual, as provided in this act, with respect to his unemployment.

(d) “Benefit year”, with respect to any individual, means the
twelve month period beginning with April first and ending with March
thirty-first. When the last day of a benefit year falls within a week of
compensable unemployment, the benefit year shall be extended until the
completion of such week.

(e) “Calendar quarter” means the period of three consecutive cal-
endar months ending on March thirty-first, June thirtieth, September
thirtieth or December thirty-first, excluding, however, any calendar quar-
ter or portion thereof which occurs prior to January first, nineteen hun-
dred and thirty-seven, or the equivalent thereof, as the Commission may
by regulation prescribe.

(f) “Commission” means the Unemployment Compensation Com-
mission established by this act.

(g) “Contributions” means the taxes imposed by and collectible
under this act.

(h) “Employing unit” means any individual or type of organiza-
tion, including any partnership, association, trust, estate, joint-stock
company, insurance company or corporation, whether domestic or foreign,
or the receiver, trustee in bankruptcy, trustee or successor thereof, or the
legal representative of a deceased person, which has or subsequent to
January first, nineteen hundred and thirty-six, had in its employ one or
more individuals performing services for it within the State. All indi-
viduals performing services within this State for any employing unit which
maintains two or more separate establishments within this State shall be
deemed to be employed by a single employing unit for all the purposes of
this act. Whenever any employing unit contracts with or has under it any
contractor or subcontractor for the performance of any service which is
part of its usual trade, occupation, profession, or business, unless the em-
ploying unit as well as each such contractor or subcontractor is an em-
ployer by reason of section two (i), or section eight (c) of this act, the
employing unit shall for all the purposes of this act be deemed to employ
each individual in the employ of each such contractor or subcontractor
for each day during which such individual is engaged in performing such
service ; except that notwithstanding any other provision of this act, each
such contractor or subcontractor shall alone be deemed to be liable for
the payment to the commission of the contributions measured by wages
payable to individuals in his employ, while performing such service, and
the Commission shall have all the rights, powers and remedies for the
collection of such contributions from such contractor or subcontractor pro-
vided for in this act for the collection of contributions from an employer.
Each individual employed to perform or to assist in performing the work
of any agent or employee of an employing unit shall be deemed to be
employed by such employing unit for all the purposes of this act, whether
such individual was hired or paid directly by such employing unit or by
such agent or employee, provided the employing unit had actual or con-
structive knowledge of such work.

(1) “Employer” means:

(1) Any employing unit which for some portion of a day, but not
necessarily simultaneously, in each of twenty different weeks, whether or
not such weeks are or were consecutive, within either the current or the
preceding calendar year, has or had in employment, eight or more indi-
viduals, irrespective of whether the same individuals are or were em-
ployed in each such day ;

(2) Any employing unit which acquired the organization, trade or
business, or substantially all the assets thereof, of another which at the
time of such acquisition was an employer subject to this act ;

(3) Any employing unit which acquired the organization, trade or
business, or substantially all the assets thereof, of another employing
unit and which, if treated as a single unit with such other employing unit,
would be an employer under paragraph (1) of this subsection ;

(4) Any employing unit which together with one or more other
employing units, is owned or controlled, by legally enforcible means or
otherwise, directly or indirectly by the same interests, or which owns or
controls one or more other employing units, by legally enforcible means
or otherwise, and which if treated as a single unit with such other em-
ploying unit, would be an employer under paragraph (1) of this sub-
section ;

(5) Any employing unit which, having become an employer under
paragraph (1), (2), (3), or (4) of this subsection, has not, under sec-
tion eight, ceased to be an employer subject to this act ; or

6. For the effective period of its election pursuant to section
eight (c) any other employing unit which has elected to become fully
subject to this act.

(j) (1) “Employment” means any service performed prior to
January first, nineteen hundred and forty, which was employment as
defined in this section prior to such date, and, subject to the other pro-
visions of this subsection, service performed after December thirty-first,
nineteen hundred and thirty-nine, including service in interstate com-
merce, performed for remuneration or under any contract of hire, written
or oral, express or implied.

(2) The term “employment” shall include an individual’s entire
service, performed within or both within and without this State if:
(A) the service is localized in this State; or

(B) the service is not localized in any State but some of the serv-
ice 1s performed in this State and (i) the base of operation, or, if there
is no base of operation, then the place from which such service is directed
or controlled, is in this State; or (11) the base of operations or place from
which such service is directed or controlled is not in any State in which
some part of the service is performed, but the individual’s residence is in
this State.

(3) Services performed within this State but not covered under
paragraph (2) of this subsection shall be deemed to be employment sub-
ject to this act if contributions are not required and paid with respect to
such services under an unemployment compensation law of any other
State or of the Federal Government.

(4) (a) Services not covered under paragraph (2) of this sub-
section, and performed entirely without this State, with respect to no
part of which contributions are required and paid under an unemployment
compensation law of any other State or of the Federal Government, shall
be deemed to be employment subject to this act if the individual perform-
ing such services is a resident of this State and the commission approves
the election of the employing unit for whom such services are performed
that the entire service of such individual shall be deemed to be employ-
ment subject to this act.

(b) Services covered by an arrangement between the Commission
and the agency charged with the administration of any other State or
Federal unemployment compensation law, pursuant to which all services
performed by an individual for an employing unit are deemed to be per-
formed entirely within this State, shall be deemed to be employment if the
Commission has approved an election of the employing unit for whom
such services are performed, pursuant to which the entire service of such
individual during the period covered by such election is deemed to be in-
sured work.

(c) The Commission is hereby authorized to enter into reciprocal
arrangements with appropriate and duly authorized agencies of other
States or the Federal Government, or both, whereby services performed
by an individual for a single employing unit for which services are cus-
tomarily performed in more than one State shall be deemed to be services
performed entirely within any one of the States (i) in which any part
of such individual’s service is performed or (11) in which such individual
has his residence or (iii) in which the employing unit maintains a place
of business, provided there is in effect, as to such services, an election,
approved by the agency charged with the administration of such State’s
unemployment compensation law, pursuant to which all the services per-
formed by such individual for such employing unit are deemed to be per-
formed entirely within such State.

(5) Service shall be deemed to be localized within a State if:

(A) the service is performed entirely within such State; or

(B) the service is performed both within and without such State,
but the service performed without such State is incidental to the indi-
vidual’s service within the State, for example is temporary or transitory
in nature or consists of isolated transactions.

Services performed outside the State in which the base of operations
is located shall be deemed to be incidental to the services performed with-
in such State.

(6) Services performed by an individual for remuneration shall be
deemed to be employment subject to this act unless ;

(A) — such individual has been and will continue to be free from con-
trol or direction over the performance of such services, both under his
contract of service and in fact ; and

(B) such service is either outside the usual course of the business
for which such service is performed, or that such service is performed out-
side of all the places of business of the enterprise for which such service
is performed; or such individual, in the performance of such service, is
engaged in an independently established trade, occupation, profession or
business.

(7) The term “employment”, after December thirty-first, nineteen
hundred and thirty-nine, shall not include:

(A) Service performed in the employ of a State, or of any political
subdivision thereof, or of any instrumentality of any one or more of the
foregoing which is wholly owned by one or more States or political sub-
divisions ; and any service performed in the employ of any instrumentality
of one or more other states or their political subdivisions to the extent
that the instrumentality is, with respect to such service; immune under
the Constitution of the United States from the tax imposed by section
sixteen hundred of the Federal Internal Revenue Code. ,

(B) Service performed in the employ of the United States Gov-
ernment or of an instrumentality of the United States which is wholly
owned by the United States ;

(C) Service with respect to which unemployment compensation 1s
payable under an unemployment compensation system established by an
Act of Congress, including service, performed after June thirtieth, nine-
teen hundred and thirty-nine, for an employer determined to be subject
to the Railroad Unemployment Insurance Act by the agency or agencies
empowered to make such determination by an Act of Congress, and serv-
ice as an employer representative determined to be subject to said act by
said agency or agencies; provided, that the Commission is hereby au-
thorized and directed to enter into agreements with the proper agencies
under such Act of Congress, which agreements shall become effective ten
days after publication thereof in the manner provided in section eleven
(b) of this act for general rules, to provide reciprocal treatment to in-
dividuals who have, after acquiring potential rights to benefits under this
act acquired rights to unemployment compensation under such Act of
Congress, or who have, after acquiring potential rights to unemployment
compensation under such Act of Congress, acquired rights to benefits
under this act; :

(D) Agricultural labor (as defined in subsection t) ;

(E) Domestic service in a private home, local college club, or local
chapter of a college fraternity or sorority ;
(IF) Service performed as an officer or member of the crew of a
vessel on the navigable waters of the United States ;.

(G) Service performed by an individual in the employ of his son,
daughter, or spouse, and service performed by a child under the age of
twenty-one in the employ of his father or mother ;

(HH) Service performed in the employ of a corporation, community
chest, fund, or foundation, organized and operated exclusively for re-
ligious, charitable, scientific, literary, or educational purposes, or for the
prevention of cruelty to children or animals, no part of the net earnings
of which inures to the benefit of any private shareholder or individual.

(I) Service performed in any calendar quarter in the employ of
any organization exempt from income tax under section one hundred and
one of the Federal Internal Revenue Code, 1f—

(1) the remuneration for such service does not exceed forty-five
dollars, or |

(11) such service is in connection with the collection of dues or
premiums for a fraternal beneficiary society, order, or association, and is
performed away from the home office, or is ritualistic service in connec-
tion with any such society, order, or association, or

(i111) such service is performed by a student who is enrolled and is
regularly attending classes at a school, college, or university ;

(J) Service performed in the employ of an agricultural or horti-
cultural organization exempt from income tax under section one hundred
and one (1) of the Federal Internal Revenue Code;

(K) “Service performed in the employ of a voluntary employees’
beneficiary association providing for the payment of life, sick, accident,
or other benefits to the members of such association or their dependents,
if (1) no part of its net earnings inures (other than through such
payments) to the benefit of any private shareholder or individual, and
(11) eighty-five per centum or more of the income consists of amounts
collected from members for the sole purpose of making such payments
and meeting expenses ;

Service performed in the employ of a voluntary employees’ bene-
ficiary association providing for the payment of life, sick, accident, or
other benefits to the members of such association or their dependents or
their designated beneficiaries, if (1) admission to membership in such
association is limited to individuals who are officers or employees of the
United States Government, and (ii) no part of the net earnings of such
association inures (other than through such payments) to the benefit of
any private shareholder or individual ;

Service performed in any calendar quarter in the employ of a school,
college, or university, not exempt from income tax under section one
hundred and one of the Federal Internal Reventie Code, if such service is
performed by a student who is enrolled and is regularly attending classes
at such school, college, or university, and the remuneration for such serv-
ice does not exceed forty-five dollars (exclusive of room, board, and tui-
tion ) ; ,

— (L) “Service performed as a student in the employ of a hospital or
a nurses’ training school by an individual who is enrolled and is regularly
attending classes in nurses’ training school chartered or approved pur-
suant to State law; and service performed as an interne in the employ of
a hospital by an individual who has completed a four years’ course in a
medical school chartered or approved pursuant to State law ;

(M) Service performed by an individual under the age of eighteen
in the delivery or distribution or newspapers or shopping news, not in-
cluding delivery or distribution to any point for subsequent delivery or
distribution ;

(N) Service performed by an individual for an employing unit as
an insurance agent or as an insurance solicitor, if all such service per-
formed by such individual for such employing unit is performed for
remuneration solely by way of commission ; or

(O) Service performed by an individual for an employing unit as
a real estate salesman, if all such service performed by such individual
for such employing unit is performed for remuneration solely by way of
commission. This subsection (O) shall also apply to such service per-
formed since January first nineteen hundred and thirty-seven.

(P) Service covered by an arrangement between the commission
and the agency charged with the administration of any other State or
Federal unemployment compensation law pursuant to which all services
performed by an individual for an employing unit during the period cov-
ered by such employing units duly approved election, are deemed to be
performed entirely within such agency’s State or under such Federal law.

(k) “Employment office” means a free public employment office, or
branch thereof, operated by this State or maintained as a part of a State-
controlled system of public employment offices or by a federal agency
charged with the administration of free public employment offices.

(1) “Fund” means the unemployment compensation fund estab-
lished by this act, to which all contributions required and from which all
benefits provided under this act shall be paid.

(m) “Insured Work” means employment for employers.

(n) “State”, refers to the Commonwealth of Virginia, including
land or premises located therein, owned, held, or possessed by the United
States, the States of the United States of America, Alaska, Hawau, and
the District of Columbia.

(0) “Social Security Act” means the act enacted by the Congress
of the United States, approved the fourteenth day of August, nineteen
hundred and thirty-five, entitled “an act to provide for the general wel-
fare by establishing a system of Federal old-age benefits, and by enabling
the several States to make more adequate provision for aged persons,
blind persons, dependent and crippled children, maternal and child wel-
fare, public health, and the administration of their unemployment com-
pensation laws; to establish a Social Security Board ; to raise revenue and
for other purposes,” and amendments thereof.

(p) “Unemployment”.—An individual shall be deemed “unem-
ployed” in any week during which he performs no services and with re-
spect to which no wages are payable to him, or in any week of less than
full-time work if the wages payable to him with respect to such week are
less than his weekly benefit amount. An individual’s week of unemploy-
ment shall be deemed to commence only after his registration at an em-
ployment office, except as the Commission may by regulation otherwise
prescribe.

(q) “Unemployment compensation administration fund” means the
unemployment compensation administration fund established by this act,
from which administrative expenses under this act shall be paid. ,

(r) “Wages” means all remuneration payable for personal serv-
ices, including commissions and bonuses and the cash value of all remun-
eration payable in any medium other than cash. Gratuities customarily
received by an individual in the course of his employment from persons
other than his employing unit shall be treated as wages payable by his em-
ploying unit. The reasonable cash value of remuneration payable in any
medium other than cash, and the reasonable average amount of gratuities,
shall be estimated and determined in accordance with rules prescribed by
the commission, provided that, in lieu of any estimate of such gratuities,
the employer may require from his employees a signed statement of the
amount of such gratuities actually received, and in such cases the em-
ployer may base his report upon such signed statement; except that the
term “wages”, after December thirty-first, nineteen hundred and thirty-
nine, shall not include— , .

(1) That part of the remuneration which, after remuneration
equals to three thousand dollars is payable to an individual by an employer
with respect to employment during any calendar year, is payable to such
individual by such employer with respect to employment during such
calendar year ; ,

(2) The amount of any payment made to, or on behalf of an em-
ployee under a plan or system established by an employer which makes
provision for his employees generally or for a class or classes of his em-
ployees (including any amount paid by an employer for insurance or an-
nuities, or into a fund, to provide for any such payment), on account of
(A) retirement, or (B) sickness or accident disability, or (C) medical
and hospitalization expenses 1n connection with sickness or accident. dis-
ability, or (D) death, provided the employee (1) has not the option to re-
ceive, instead of provision for such death benefit, any part of such pay-
ment or, if such death benefit is insured, any part of the premiums (or
contributions to premiums) paid by his employer and (11) has not the
right, under the provisions of the plan or system or policy of insurance
providing for such death benefit, to assign such benefit, or to receive a
cash consideration in lieu of such benefit either upon his withdrawal from
the plan or system providing for such benefit or upon termination of such
plan or system or policy of insurance or of his employment with such em-
ployer ; :

(3) The payment by an employer (without deduction from the re-
muneration of the employee) of the tax imposed upon an employer under
section fourteen hundred of the Federal Internal Revenue Code; or

(4) Dismissal payments which the employer is not legally required
to make.
(s) “Week” means calendar week, ending at midnight Saturday
or the equivalent thereof as determined in accordance with regulation:
prescribed by the commission.

(t) Agricultural Labor.—The term “agricultural labor’ include:
all service performed— ,

(1) On a farm, in the employ of any person, in connection witl
cultivating the soil, or in connection with raising or harvesting any agri-
cultural or horticultural commodity, including the raising, shearing, feed-
ing, caring for, training, and management of livestock, bees, poultry, anc
fur-bearing animals and wildlife. |

(2) In the employ of the owner or tenant or other operator of <
farm, in connection with the operation, management, conservation, im-
provement, or maintenance of such farm and its tools and equipment, or ir
salvaging timber or clearing land of brush and other debris left by a hurri-
cane, if the major part of such service is performed on a farm.

(3) In connection with the production or harvesting of maple
sirup or maple sugar or any commodity defined as an agricultural com-
modity in section fifteen (g) of the Federal Agricultural Marketing Act.
as amended, or in connection with the raising or harvesting of mush-
rooms or in connection with the hatching of poultry, or in connection with
the ginning of cotton, or in connection with the operation or maintenance
of ditches, canals, reservoirs, or waterways used exclusively for supplying
and storing water for farming purposes.

(4) In handling, planting, drying, packing, packaging, processing,
freezing, grading, storing, or delivering to storage or to market or to a
carrier for transportation to market, any agricultural or horticultural
commodity ; but only if such service is performed as an incident to ordi-
nary farming operations or, in the case of fruits and vegetables, as an inci-
dent to the preparation of such fruits or vegetables for market. The pro-
visions of this paragraph shall not be deemed to be applicable with re-
spect to service performed in connection with commercial canning or
commercial freezing or in connection with any agricultural or horticul-
tural commodity after its delivery to a terminal market for distribution
for consumption.

As used in this subsection, the term “farm” includes stock, dairy,
poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches,
nurseries, ranges, greenhouses or other similar structures used primarily
for the raising of agricultural or horticultural commodities, and orchards.

Section 3. Benefits—-(a) Payment of Benefits —Twenty-four
months after the first day of the first period with respect to which con-
tributions are required under this act, benefits shall become payable from
the fund. All benefits shall be paid through employment offices, in accord-
ance with such regulations as the commission may prescribe.

(b) (1) Weekly benefit amount.—

Commencing April first, nineteen hundred and forty-two, an eligible
individual’s weekly “benefit amount” shall be the amount appearing in
Column B in the Benefit Table in this subsection on the line on which, in
Column A of such table, there appears the total wages for insured work
earned by such individual in that quarter of his base period in which such
total wages were highest. The Benefit Table set forth in chapter three
hundred and thirty-three of the Acts of the General Assembly, nineteen
hundred and forty shall remain in force until the end of March, nineteen
hundred and forty-two.

(2) Weekly Benefit for Unemployment.—Each eligible individual
who is unemployed in any week shall be paid with respect to such week
a benefit in an amount equal to his weekly benefit amount less that part
of the wages (if any) payable to him with respect to such week which is
in excess of two dollars. ,

(3) Notwithstanding any of the other provisions of this Act an
eligible individual’s weekly benefit amount and duration of benefits for
the benefit year beginning April first, nineteen hundred and forty, and
ending March thirty-first, nineteen hundred and forty-one, shall reflect
all such individual’s earned wages in insured work during the calendar
year nineteen hundred and thirty-nine without regard to any benefits
which may have been previously charged against amounts credited to his
account based on such earned wages. Effective April first, nineteen hun-
dred and forty, any benefit rights of individuals shall be based solely upon
the benefit year as defined in subsection (d) of section 2.

(c) Duration of Benefits—The maximum total amount of bene-
fits payable to any individual during any benefit year shall be determined
from the “Benefit Table” shown in this section, but in no case shall such
maximum exceed sixteen times such individual’s weekly benefit amount.
Such determination shall be based only upon wages earned in insured
work during such individual’s base period. The Commission shall main-
tain a separate account for each individual who subsequent to January
first, nineteen hundred and thirty-seven, earns wages in insured work.
After the expiration of each calendar quarter the Commission shall credit
each individual’s account with the wages earned by him in insured work
in said calendar quarter.

(d) Notwithstanding the other provisions of this section the base
period of any individual who, subsequent to June thirtieth, nineteen hun-
dred and forty, entered the military service of the United States shall,
upon such individual’s discharge from such military service, be the eight
calendar quarters immediately preceding such individual’s entry into such
military service and the uncompleted portion of the calendar quarter, if
any, prior to such entry. Such individual, upon being so discharged from
military service, shall be credited with all earned wages in insured work
during such base period without regard to any benefits which may have
been previously charged against amounts credited to his account based
on such earned wages. Notwithstanding the provisions of section 2(d) of
this Act such individual’s benefit year shall be the fifty-two consecutive
week period commencing the first day of the week immediately following
such individual’s discharge from such military service. Any benefit rights
as above computed which are not utilized in such fifty-two week benefit
year may be utilized at the same weekly benefit rate in the remaining
portion of that benefit year as defined in section two (d) in which the
last day of such fifty-two week benefit year falls; provided that the in-
dividual has filed a claim for benefits during such fifty-two week benefit
year ; any such benefit rights shall be utilized prior to the utilization of any
benefit rights to which the individual is entitled in the benefit year in
which the last day of the fifty-two week benefit year falls.

“Military Service” as used herein means service in the land, air and
naval forces of the United States, including service under the Selective
Training and Service Act of nineteen hundred and forty, or service under
the National Guard and Mobilization Act, or any other service in the
armed forces of the United States under any Act of Congress.
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Section 4. Benefit Eligibility Conditions—An unemployed indi-
vidual shall be eligible to receive benefits with respect to any week only if
the Commission finds that— ,

(a) He has registered for work at and thereafter has continued to
report at an employment office in accordance with such regulations as the
Commission may prescribe, except that the Commission may, by regula-
tion, waive or alter either or both of the requirements of this subsection as
to such types of cases or situations with respect to which it finds that
compliance with such requirements would be oppressive, or would be in-
consistent with the purpose of this act.

(b) He has made a claim for benefits in accordance with the pro-
visions of section six (a) of this act.

(c) He is able to work, and is available for work.

(d) Prior to any week for which he claims benefits, he has been un-
employed during his benefit year for a waiting period of one week with
respect to which he received no benefits, but during which he was eligible
for benefits in all other respects and was not disqualified for benefits under
any provision of section five of this act. If the benefit year ends during
consecutive weeks of compensable unemployment for any individual, such
individual shall not be required to serve a new waiting period before
benefits shall accrue in the new benefit year and be payable. |

(e) He has within his base period earned wages in employment for
employers equal to not less than twenty-five times his weekly benefit
amount. : .

(f) Part-time workers.— |

(1) As used in this subsection the term “part-time worker” means
an individual whose normal work is in an occupation in which the Com-
mission finds that his services are not required for the customary sched-
uled full-time hours prevailing in the establishment in which he is em-
ployed or who, owing to personal circumstances, does not customarily
work the customary scheduled full-time hours prevailing in the estab-
lishment in which heisemployed.

- (2) The Commission shall prescribe fair and reasonable general
rules, not inconsistent with general law, applicable to part-time workers
for determining their full-time weekly wage and the period for earning
and the amount of the total wages for employment by employers required
to qualify such workers for benefits. z |

(g) Seasonal workers.— , :

(1) As used in this section, the term “seasonal industry” means an
occupation or industry in which, because of the seasonal nature thereof
it is customary to operate only during a regularly recurring period’ or
periods of less than forty weeks. The Commission shall, after investiga-
tion and hearing, determine, and may thereafter from time to time re-
determine, the longest seasonal period or periods during which, by the
best practice of the occupation or industry in question, operations are con-
ducted. Until such determination by the Commission, no occupation or
industry shall be deemed seasonal. , ,

(2) The term “seasonal worker” means an individual who is or-
dinarily engaged in a seasonal industry and who, during the portion or
cH. 317] ACTS OF ASSEMBLY 459

portions of the year when such industry is not in operation is or-
dinarily not engaged in any other work.

(3) The Commission shall prescribe fair and reasonable general
rules, not inconsistent with general law, applicable to seasonal workers for
determining the period for earning ‘and the amount of the total wages re-
quired to qualify such workers for benefits and the period during which
benefits shall be payable to them. The Commission may prescribe fair
and reasonable general rules with respect to such other matters relating
to benefits for seasonal workers as the Commission finds necessary and
consistent with the policy and purposes of this act.

Section 5. Disqualification for Benefits—An individual shall be
disqualified for benefits—

(a) For the week in which he has left work voluntarily without
good cause, if so found by the Commission, and for not less than the one
nor more than the five weeks which immediately follow such week (in
addition to the waiting period), as determined by the Commission ac-
cording to the circumstances in each case.

(b) For the week in which he has been discharged for misconduct
connected with his work, if so found by the Commission, and for not less
than the one nor more than the nine weeks which immediately follow such
week (in addition to the waiting period), as determined by the commis-
sion in each case according to the seriousness of the misconduct.

(c) If the Commission finds that he has failed, without good cause,
either to apply for available, suitable work when so directed by the em-
ployment office or the Commission or to accept suitable work when offered
him, or to return to his customary self-employment, if any, when so di-
rected by the Commission. Such disqualification shall continue for the
week in which such failure occurred and for not less than the one nor
more than the five weeks which immediately follow such week (in addi-
tion to the waiting period) as determined by the Commission according
to the circumstances in each case.

(1) In determining whether or not any work is suitable for an
individual, the Commission shall consider the degree of risk involved to
his health, safety, and morals, his physical fitness and prior training, his
experience and prior earnings, his length of unemployment and prospects
for securing local work in his customary occupation, and ne distance of
the available work from his residence.

(2) -Notwithstanding any other provisions of this act, 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: (A) if the position offered is vacant
due directly to a strike, lockout, or other labor dispute; (B) if the wages,
hours, or other conditions of the work offered are substantially less fav-
orable to the individual than those prevailing for similar work in the lo-
cality; (C) if as a condition of being employed the individual would be
required to join a company union or to resign from or refrain from join-
ing any bona-fide labor organization.

(d) For any week with respect to which the Commission finds.
that his total or partial unemployment is due to a stoppage of work which
exists because of a labor dispute at the factory, establishment, or other
premises at which he is or was last employed, provided that this subsec-
tion: shall not apply if it is shown to the satisfaction of the Commission
that—

(1) He is not participating in‘or financing or directly interested
in the labor dispute which caused the stoppage of work ; and

(2) He does not belong to a grade or class of workers of which,
immediately before the commencement of the stoppage, there were mem-
bers employed at the premises at which the stoppage occurs, any of whom
are participating in or financing or directly interested in the dispute.

Provided, that if in any case separate branches of work which are
commonly conducted as separate businesses in separate premises are con-
ducted in separate departments of the same premises, each such depart-
ment shall, for the purposes of this subsection, be deemed to be a separate
factory, establishment, or other premises.

(e) For any week with respect to which or a part of which he has
received or is seeking unemployment benefits under an unemployment
compensation law of any other State or of the United States; provided,
that if the appropriate agency of such other State or of the United States
finally determines that he is not entitled to such unemployment benefits,
this disqualification shall not apply. , ,

({) The provisions of subsection (a) and (b) and (e) of this
section shall not apply to any individual applying for benefits under the
provisions of subsection (d) of section 3 of this act.

Section 6. Claims for Benefits—(a) Fuiling—Claims for bene-
fits shall be made in accordance with such regulations as the Commission
may prescribe. Each employer shall post and maintain printed statements
of such regulations in places readily accessible to individuals in his serv-
ice and shall make available to each such individual at the time he becomes
unemployed, a printed statement of such regulations. Such printed state-
ments shall be supplied by the commission to each employer without cost
to him.

(b) Initial Determination—A representative designated by the
Commission, and hereinafter referred to as a deputy, shall promptly ex-
amine the claim and, on the basis of the facts found by him, shall either
determine whether or not such claim is valid, and if valid, the week with
respect to which benefits shall commence, the weekly benefit amount pay-
able and the maximum duration thereof, or shall refer such claim or any
question involved therein to any appeal tribunal or to the Commission,
which tribunal or Commission shall make its determination with respect
thereto in accordance with the procedure described in subsection (c) of
this section, except that in any case in which the payment or denial of
benefits will be determined by the provisions of section five (d) of this
act, the deputy shall promptly transmit his full finding of fact with respect
to that subsection to the Commission, which, on the basis of the evidence
submitted and such additional evidence as it may require, shall affirm,
modify, or set aside such findings of fact and transmit to the deputy a
. decision upon the issues involved under that subsection. The deputy shall
promptly notify the claimant, and in any claim involving the application
of section five of this act he shall also notify the most recent employer
of the claimant of the determination or decision and the reasons therefor.
Unless the claimant or any such interested party, within five calendar days
after the delivery of such notification, or within seven calendar days after
such notification was mailed to his last known address, files an appeal trom
such determination or decision, such determination or decision shall be
final and benefits shall be paid or denied in accordance therewith. If an
appeal is duly filed, benefits with respect to the period prior to the final
determination of the Commission shall be paid only after such determina-
tion; provided, that if an appeal tribunal affirms a determination of a
deputy, or the Commission affirms a decision of an appeal tribunal, allow-
ing benefits, such benefits shall be paid regardless of any appeal which
may thereafter be taken, except that should further appeal be taken bene-
fits so paid shall result in benefit wage charges to the accounts of the em-
ployer or employers under section seven (d) of this act only when and
as of the date on which, as a result of a further appeal, the courts finally
determine that the Commission should have awarded benefits to the
claimant or claimants involved in such appeal.

(c) Appeals——Unless such appeal from any initial determination
made by the Commission or by a deputy is withdrawn, an appeal tribunal,
after affording the parties reasonable opportunity for fair hearing, shall
affirm, set aside, reverse, or modify the findings of fact and decision of the
Commission or the deputy. The parties shall be duly notified of such tri-
bunal’s decision, together with its reasons therefor, which shall be deemed
to be the final decision of the Commission, unless within ten days after
the date of notification or mailing of such decision, further appeal is initi-
ated pursuant to subsection (e) of this section. Any such decision by an
appeal tribunal involving whether an employing unit constitutes an em-
ployer or whether services performed for or in connection with the busi-
ness of an employing unit constitute employment for such employing unit
from which no appeal is initiated shall be conclusive in any subsequent
judicial proceedings involving liability for contributions by the commis-
sion against any employing unit which was a party to the proceedings had
before such appeal tribunal.

(d) Appeal Tribunals—To hear and decide disputed claims, the
Commission shall establish one or more impartial appeal tribunals con-
sisting in each case of either a salaried examiner or a body consisting of
three members, one of whom shall be a salaried examiner, who shall serve
as chairman, one of whom shall be a representative of employers and the
other of whom shall be a representative of employees; each of the latter
two members shall serve at the pleasure of the Commission and be paid a
fee of not more than ten dollars per day of active service on such tribunal
plus necessary expenses. No person shall participate on behalf of the
Commission in any case in which he is an interested party. The Com-
mission may designate alternates to serve in the absence or disqualifica-
tion of any member of an appeal tribunal. The chairman shall act alone
in the absence or disqualification of any other member and his alternates.
In no case shall the hearings proceed unless the chairman of the appeal
tribunal is present. ,
_ _(e) Commission Review.—The Commission may on its own
motion affirm, modify, or set aside any decision of an appeal tribunal on
the basis of the evidence previously submitted in such case, or direct the
taking of additional evidence, or shall permit any of the parties to such
decision to initiate further appeals before it. The Commission may remove
to itself or transfer to another appeal tribunal the proceedings on any claim
pending before an appeal tribunal. Any proceeding so removed to the
Commission shall be heard in accordance with the requirements of sub-
section (c) of this section. The Commission shall promptly notify the
interested parties of its findings and decision.

Any decision of the Commission, upon a hearing on appeal, shall
become final ten days after the date of notification or mailing thereof, and
judicial review thereof shall be permitted the claimant or any interested
party claiming to be aggrieved thereby. The Commission shall be deemed
to be a party to any judicial action involving any such decision, and shall
be represented in any such judicial action by the Attorney General. Any
such decision by the Commission involving whether an employing unit
constitutes an employer or whether services performed for or in connec-
tion with business of an employing unit constitute employment for such
employing unit from which no judicial review is had pursuant to sub-
section (h) of this section shall be conclusive in any subsequent judicial
proceedings involving liability for contributions by the Commission
against any employing unit which was a party to the proceedings had
before the Commission.

(f{) Procedure—The manner in which disputed claims shall be
presented, the reports thereon required from the claimant and from em-
ployers, and the conduct of hearings and appeals before any deputy, appeal
tribunal or the Commission shall be in accordance with regulations pre-
scribed by the Commission for determining the rights of the parties,
whether or not such regulations conform to common law or statutory rules
of evidence and other technical rules of procedure. A full and complete
record shall be kept of all proceedings 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.

(g) Witness Fees.—Witness subpoenaed pursuant to this section
shall be allowed fees at a rate fixed by the Commission. Such fees shall
be deemed a part of the expense of administering this act.

(h) Judicial Review.—Within ten days after the decision of the
Commission upon a hearing pursuant to subsection (e) of this section has
become final, any party aggrieved thereby may secure judicial review
thereof by commencing an action in the circuit court of the county or in
the corporation or hustings court of the city, or if the city has no corpora-
tion or hustings court, then in the circuit court of the city, or if no circuit
court, then in the circuit court of the county in which such city is geo-
graphically located, in which the individual who filed the claim was last
employed, against the Commission for the review of its decision, in which
action any other party to the proceedings before the Commission shall be
made a defendant. In such action, a petition which need not be verified,
but which shall state the grounds upon which a review is sought, shall be
cH. 317] ACTS OF ASSEMBLY 463

served upon a member of the Commission or upon such person as the
Commission may designate and such service shall be deemed completed
service on all parties, but there shall be left with the party so served as
many copies of the petition as there are defendants and the commission
shali forthwith mail one such copy to each such defendant. With its an-
swer, the Commission shall certify and file with said court all documents
and papers and a transcript of all testimony taken in the matter, together
with its findings of fact and decision therein. The Commission may also,
in its discretion, certify to such court questions of law involved in any
decision by it. In any judicial proceedings under this section, the findings
of the Commission as to the facts, if supported by evidence and in the
absence of fraud, shall be conclusive, and the jurisdiction of said court
shall be confined to questions of law. Such actions and the questions so
certified, shall be heard in a summary manner at the earliest possible date.
An appeal may be taken from the decision of such court to the Supreme
Court of Appeals, in conformity with general law governing appeals in
equity cases, and from any such decision involving the provisions of sec-
tion five (d) of this act or whether an employing unit constitutes an
employer or whether services performed for or in connection with the
business of an employing unit constitute employment for such employing
unit, the Supreme Court of Appeals shall have jurisdiction to review such
decision regardless of the amount involved in any claim for benefits. It
shall not be necessary, in any proceeding under this section, to enter
exceptions to the rulings of the Commission or an appeal tribunal, and no
bond shall be required upon an appeal to any court. Upon the final deter-
mination of such judicial proceeding, the Commission shall enter an order
in accordance with such determination. A petition for judicial review shall
operate as a supersedeas.

(i) Re-determination of Claims.—Notwithstanding any other pro-
visions of this act, the Commission may, at any time within one year from
the date the deputy’s determination became final pursuant to section six
(b) of this act, re-determine any claim decided by a deputy respecting
which no appeal was taken by the claimant from the determination of such
deputy. Notice of any such re-determination shall be given promptly to
the interested parties, and an appeal may be had from such re-determima-
tion within the time and in the manner prescribed for an appeal from any
original determination, and if no such appeal is filed such re-determination
shall be final. Any re-determination hereunder shall be limited to claims
concerning which an error in computation has occurred, or that wages of
the claimant pertinent to such determination but not considered in connec-
tion therewith have been newly discovered. a

(j) Board of Review.—The Commission, in its discretion, is hereby
authorized to appoint a Board of Review, consisting of three members
one of whom shall be designated chairman, for a term of six years, except
that the terms of the members first taking office shall be two, four, anc
six years, respectively, as designated by the Commission at the time of the
appointment, and except that vacancies shall be filled by appointment by
the Commission for the unexpired term. During his term of membershiy
on the Board of Review no member shall serve as an officer or committe:
member of any political organization. The members of the board shall be
paid a compensation to be determined by the Commission. The Commis-
sion shall furnish the board such stenographic and clerical assistance as
the board may require. All compensation of the members of the board and
all necessary expenses for the operation thereof shall be paid out of the
administrative fund provided for in section thirteen of this act. The Com-
mission may at any time, after notice and hearing, remove any member
for cause. The Commission may, after thirty days’ notice to the members
of said board, and upon a finding that said board is no longer needed,
abolish the same. Said Board of Review shall meet upon the call of the
chairman and shall have the same powers and perform the same functions
vested in the Commission in this act for review of decisions of an Appeal
Tribunal, including the power to administer oaths and affirmations, take
depositions, certify to official acts, and issue subpoenas to compel the
attendance of witnesses and the production of books, papers, correspond-
ence, memoranda, and other records deemed necessary as evidence in
connection with disputed claims. The Board of Review may hold its hear-
ings in the county or city where the claimant was last employed, except
that hearings involving the provisions of section five (d) of this act shall
be held in the county or city where the claimant was last employed, and
when the same or substantially similar evidence is relevant and material
to matters in issue in claims by more than one individual or in claims by a
single individual with respect to two or more weeks of unemployment, the
same time and place for considering each such claim may be fixed, hear-
ings thereon jointly conducted, and a single record of the proceedings
made. The Commission may issue such regulations as it deems necessary
for the procedure of the Board of Review in the conduct of its hearings.
During the time said Board of Review is organized under authority of the
Commission, the commission shall have no jurisdiction under subsection
(e) of this section. Any decision of the Board of Review shall become
final ten days after the date of notification or mailing thereof and judicial
review thereof shall be permitted the claimant, the Commission, or any
interested party claiming to be aggrieved thereby, and in any judicial
action involving any such decision the Commission shall be represented
by the Attorney General. Any decision of the Board of Review from
which no judicial review is sought within the time prescribed in sub-
section (h) of this section shall be conclusive against any party to the
hearing before said board and the Commission in any subsequent judicial
proceedings involving liability for contributions under this act.

Within the time specified in subsection (h) of this section, the Com-
mission, or any party to the proceedings before the Board of Review, may
obtain judicial review thereof by filing in the circuit court of the county
or in the corporation or hustings court, then in the circuit court of the city,
or if no circuit court, then in the circuit court of the county in which such
city 1s geographically located, in which the individual who filed the claim
was last employed, a petition for review of such decision and in any such
proceeding any other party to the proceeding shall be made a party re-
spondent. The Commission shall be deemed to be a party to any such
proceeding. The petition need not be verified. A copy of such petition
shall be served upon the Commission and each party to the proceeding
had before the Board of Review at least thirty days prior to the placing of
said petition upon the docket. The mailing of a copy of such petition to
each party thereto at his last known address shall be sufficient service
thereof. The Commission shall file along with its petition or answer a
certified copy of the record of the case, including all documents and
papers and a transcript of all testimony taken in the matter, together with
the Board of Review’s findings, conclusions and decision therein. In any
proceeding under this subsection the findings of the Board of Review as
to the facts, if supported by the evidence and in the absence of fraud, shall
be conclusive and the jurisdiction of the said court shall be confined to
questions of law. The court may order additional evidence to be taken by
the Board of Review, which said additional evidence, findings of fact or
conclusions, together with the additional transcript of the record, shall be
certified by the chairman of the Board of Review and filed by him with
the court. Such petition for review shall be heard in a summary manner
and shall have preference over all other cases on the docket, except cases
in which the Commonwealth is a party. An appeal may be taken from the
decision of such court to the Supreme Court of Appeals, in conformity
with general law governing appeals in equity cases, and from any such
decision involving the provisions of section five (d) of this act or whether
an employing unit constitutes an employer or whether services performed
for or in connection with the business of an employing unit constitute
employment for such employing unit, the Supreme Court of Appeals shall
have jurisdiction to review such decision regardless of the amount in-
volved in any claim for benefits. It shall not be necessary, in any proceed-
ing before the Board of Review, to enter exceptions to the ruling of the
Board of Review, and no bond shall be required upon an appeal to any
court. Upon the final determination of such judicial proceeding, the
Board of Review shall enter an order in accordance with such determina-
tion. A petition for judicial review shall operate as a supersedeas.
Section 7. Contributions and Determinations With Respect to
Whether an Employing Unit is an Employer—(a) The Commission
may, upon its own motion or upon application of an employing unit, and
after not less than ten days’ notice in writing mailed to the last known
address of such employing unit and an opportunity for hearing, make
findings of fact, and on the basis thereof, determinations with respect to
whether an employing unit constitutes an employer and whether services
performed for or in connection with the business of an employing unit
constitute employment for such employing unit. All testimony at any
hearing pursuant to this subsection shall be recorded but need not be
transcribed unless a petition for judicial review from such determination
is filed in the manner herein prescribed. At such hearing the interests of
the Commonwealth shall be represented by the Attorney General. Judicial
review of any such determination may be had within thirty days after the
mailing of notice of such findings and determination to the employing unit
or, in the absence of mailing, within thirty days after the delivery of such
notice and determination, in either of the courts of the City of Richmond,
as set forth in section fifty-nine hundred and twelve of the Code of Vir-
ginia, except the hustings court of the City of Richmond, part two. Such
judicial review shall be commenced by the filing of a petition, which need
not be verified, but which shall state the grounds upon which a review 1s
sought. Service of two copies of such petition upon the Commissioner shall
be deemed completed service and such petition shall be filed with the clerk
of the court within five days after service thereof. With its answer the
Commission shall certify and file with said court all documents and papers
and a transcript of all testimony taken in the matter, together with its
findings of fact and decision therein. In any judicial proceeding under this
section, the findings of the Commission as to the facts, if supported by the
evidence and in the absence of fraud, shall be conclusive, and the jurisdic-
tion of said court shall be confined to questions of law. Such actions shall
be given preference on the docket over all other cases except cases to
which the Commonwealth is a party. An appeal may be taken from the
decision of such court to the Supreme Court of Appeals, in conformity
with general law governing appeals in equity cases, and without regard to
the amount involved. In any such proceedings for judicial review, the
Commission shall be represented by the Attorney General. A determina-
tion by the Commission from which no judicial review has been had shall
be conclusive in any subsequent judicial proceeding involving liability for
contributions against said employing unit or its successor under the pro-
visions of sections two (i) (2) and fourteen (c) (1) of this act.

(b) Every employer shall, on or before January thirty-first, nine-
teen hundred and thirty-seven, or in the event the time be extended for
filing the return of the tax imposed by Title IX of the Social Security
Act for the taxable year nineteen hundred and thirty-six, then before the
expiration of such extension, pay to the Commission with respect to
employment (as defined in section two (j) of this act) during the year
beginning January first, nineteen hundred and thirty-six a tax equal to
nine-tenths of one (0.9%) per centum of wages paid and payable by him,
regardless of the time of payment, with respect to employment during the
calendar year nineteen hundred and thirty-six. ,

It-is expressly provided that, any other provision or provisions in
this act to the contrary notwithstanding, this act shall not be construed as
imposing upon any employer a tax with respect to employment during the
calendar year nineteen hundred and thirty-six greater in amount than such
employer shall be entitled to have allowed as a credit upon the taxes im-
posed by the Social Security Act with respect to such employment ; pro-
vided, however, that the foregoing shall not be construed as relieving any
employer from liability for any tax imposed by this act where there has
been a failure to obtain a credit on said federal tax due to any act or fault
of commission or omission on the part of the said employer.

(c) Onand after January first, nineteen hundred and thirty-seven,
taxes, as hereinafter set forth in this section, shall accrue and become pay-
able by each employer for each calendar year in which he is subject to this
act, with respect to wages payable for employment (as defined in section
two (j) of this act) occurring in such calendar year. Such taxes shall
become due and be paid by each employer to the Commission for the fund
in accordance with such regulations as the Commission may prescribe.
cH. 317] ACTS OF ASSEMBLY 467

The Commission is hereby expressly authorized to require filing of pay-
roll and contribution reports and payment of the taxes aforesaid in
monthly, quarterly, semi-annual payments as shall be determined by the
Commission, but the aggregate amount of taxes shall be fully paid to the
Commission on or before January thirty-first of each year next succeeding
the year with respect to employment during which year such taxes are
imposed, or in the event the time be extended for filing the return of the
taxes imposed by Title IX of the Social Security Act for the year for
which such taxes are imposed, then before the expiration of such exten-
sion.

If any employing unit fails to file with the Commission any report
which the Commission deems necessary for the effective administration
of this act within thirty days after the Commission requires the same by
written notice mailed to the last known address of such employing unit,
the Commission may determine on the basis of such information as it may
have whether such employing unit is an employer, unless such determina-
tion has already been made, and may assess the amount of contribution
due from such employer and shall give written notice of such determina-
tion and assessment to such employer. Such determination and assessment
shall be final unless such employer shall, within twenty days after the
mailing to the employer at his last known address or other service of the
notice of such determination and/or assessment, apply to the Commission
for a review of such determination and assessment or unless the Commis-
sion shall, of its own motion, set aside, reduce or increase the same.

Each employer shall pay taxes equal to the following percentages of
wages payable by him with respect to employment :

(1) One and eight-tenths (1.8%) per centum with respect to
employment during the calendar year nineteen hundred and thirty-seven ;

(2) Except as otherwise provided in subsection (d) of this section
of this Act, two and seven-tenths (2.7%) per centum with respect to
employment during the calendar year nineteen hundred and thirty-eight
and during each succeeding calendar year; after December thirty-first,
nineteen hundred and thirty-nine, wages payable beyond the last pay
period in December shall be considered as wages earned and payable in
the first pay period of the.succeeding year, and included in reports re-
quired for the first reporting period of such year.

(3) If the “Federal Unemployment Tax Act” is at any time
amended to permit a higher maximum rate of credit against the federal
tax now levied under section sixteen hundred of the Federal Internal
Revenue Code, or that may hereafter be levied under any subsequent
amendment, or amendments thereto, than is now permitted under section
sixteen hundred and one (c) of said Federal Internal Revenue Code, to
an employer with respect to any State unemployment compensation law
whose standard contribution rate on payroll under said law is more than
two and seven-tenths (2.7%) per centum, in that event the standard
contribution rate as to all employers under this act shall, by commission
rule promulgated under section eleven (b) of this Act, be increased from
two and seven-tenths (2.7%) per centum on wages to that percentage on
wages which corresponds to the higher maximum rate of credit thus
permitted against the federal unemployment tax ; and such increase shall
become effective on the same date as such higher maximum rate of credit
becomes permissible under such federal amendment.

(4) If section three hundred and three (a) (5) of Title III of the
Social Security Act and section sixteen hundred and three (a) (4) of
the Internal Revenue Code are amended to permit a state agency to use,
in financing administrative expenditures incurred in carrying out its
employment security functions, some part of the monies collected or to be
collected under the state unemployment compensation law, in partial or
complete substitution for grants under said Title III, in that event this
act shall, by Commission proclamation and rules to be issued with the
Governor’s approval, be modified in the manner and to the extent and
within the limits necessary to permit such use by the Commission under
this act; and such modifications shall become effective on the same date
as such use becomes permissible under such federal amendments.

(5) Ifthe Federal Unemployment Tax Act is at any time amended
so as to increase the rate of excise tax each employer shall pay with respect
to having individuals in his employ, the Commission may by rules promul-
gated under section eleven (b) of this act, increase the rate of contribu-
tions under this act to the rate which corresponds to the highest maximum
rate of credit permitted against such higher federal unemployment excise
tax; and such increase shall become effective on the same date as such
higher rate of federal unemployment excise tax becomes effective.

(d) Taxes imposed by this act shall not be deducted, in whole or in
part, from the wages of individuals in the employ of any employer. In the
payment of any taxes, a fractional part of a cent shall be disregarded,
unless it amounts to one-half cent or more, in which case it shall be in-
creased to one cent.

(e) For each calendar year commencing after December thirty-
first, nineteen hundred and forty, the contribution rate of each employer,
with respect to whom during the most recent three consecutive completed
calendar years throughout which any individual in his employ could have
received benefits, if eligible, shall be computed as hereinafter provided.
For the purposes of this subsection the payrolls, contributions and benefit
experience of all employers subject to the provisions of the Railroad Un-
employment Insurance Act shall be excluded in all computations to de-
termine contribution rates. The Commission shall notify each such em-
ployer of his contribution rate for such calendar year not later than fifteen
days prior to the due date of the first contribution with respect to employ-
ment in such calendar year, but the failure of any such employer to receive
such notice shall not relieve him from liability for such contribution.

(1) When, in any benefit year, an individual is first paid benefits
for total or partial unemployment, his wages during his base period shall
be termed the individual’s “benefit wages”, and shall be treated for the
purposes of this subsection as though they had been paid, by his employer
or employers, in the calendar year in which such benefits are first paid.
For the purposes of this subsection, benefit wages shall include only the
first nine hundred sixty dollars ($960.00) of wages received by any one
individual from any one employer in such individual’s base period.
(2) The employer’s benefit wages for a given calendar year shall
be the total of the benefit wages of all his employees, or former employees,
which become benefit wages during such calendar year.

(3) The “benefit wage ratio” of each employer shall be the per-
centage equal to the total of the benefit wages of his employees or former
employees, allocated as provided in subparagraph one, (1) to the most
recent three consecutive completed calendar years, divided by the total
of his annual payrolls (on which contributions have been paid on or
before January thirty-first of the calendar year with respect to which his
contribution rate is being computed) for the same three years.

(4) For any calendar year the “State experience factor’ shall. be
the total benefits paid from the fund during the most recent three con-
secutive completed calendar years, less all amounts credited to the fund
in such years other than employers’ contributions, divided by the total of
the benefit wages of all employers during the same three consecutive
completed calendar years. In such computation any fraction shall be
adjusted to the nearest multiple of one per centum (1%).

(5) Subject to the provision of paragraph six of this subsection,
the contribution rate for each employer shall be the percentage at the base
of the lowest numbered column in the following table, in which on the
same line as the current state experience factor, there appears a percent-
age equal to or in excess of such employer’s benefit wage ratio. If no
percentage equal to or in excess of such employer’s benefit wage ratio
appears on said line, then such employer’s contribution rate shall be two
and seven-tenths (2.7% ) per centum.
-~When the

State Column Column Column Column

experience 1 Pi 3 4
factor is TT
If the employer’s benefit wage ratio does
not exceed:

1% or less 100% 150% 200% 250%
Z 50 75 100 125
3 33 50 66 83
4 25 38 50 63
5 20 30 40 50
6 17 25 34 42
7 14 21 29 36
8 13 19 25 31
9 a 16 Ae 28
10 10 15 20 25
11 7 14 18 Zo
12 8 LS 17 21
13 8 12 15 19
14 7 11 14 18
15 7 10 13 17
16 6 9 12 16
17 6 9 12 15
18 6 8 11 14
19 ie 8 11 13
20 5 8 10 LS
21 5 7 10 ia
22 _ 2 7 9 11
on 4 Vi 9 11
24 4 6 8 10
25 4 6 8 10

The employer’s contribution rate shall be:
1.0% 1.5% 2.0% 2.0%

(6) At the end of each calendar year, starting on December thirty-
first, nineteen hundred and forty, the balance which shall stand to the
credit of the account of the Commonwealth of Virginia in the Unemploy-
ment Trust Fund in the Treasury of the United States, including amounts
withdrawn therefrom but not expended at December thirty-first, and
excluding any amounts transferable to the Railroad Unemployment
Compensation Fund, shall be compared with the total amount of pay-
rolls upon which contributions were paid, in the calendar year in which
contributions were paid on the largest total amount of payrolls, disre-
garding, however, the amount of payrolls upon which contributions
were paid in any calendar year more than nine years prior to the most
recently completed calendar year.

If such balance is less than four and one-half per centum (444%) of
the largest total amount of payrolls upon which contributions were paid
n any calendar year, the amount by which such balance is less than such
our and one-half (414%) per centum shall be divided by the sum of the
yayrolls of all employers upon which contributions were paid in the most
recently completed calendar year and the quotient adjusted to the nearest
multiple of one-tenth of one (1/10%) per centum. The contribution rate
of each employer computed or determined in accordance with the previous
provisions of this subsection shall be increased by such adjusted quotient.
provided that no employer’s contribution rate shall thereby be increased
to a total of more than two and seven-tenths (2.7%) per centum.

(7) As used in this subsection (e) the term “contribution rate”
means the tax or percentage of wages payable by an employer with respect
to employment.

(8) Whenever any employing unit in any manner succeeds to or
acquires the organization, trade or business, or substantially all the assets
thereof, (whether or not the succeeding or acquiring unit was an “em-
ploying unit”, as that term is defined in section two of this act, prior to
such acquisition) of another which at the time of such acquisition was an
employer subject to this act, and such predecessor employing unit has
executed and filed with the Commission on a form approved by the
Commission a waiver relinquishing all rights to prior experience for the
purpose of obtaining a reduced rate and requesting the Commission to
permit such experience to inure to the benefit of the successor employing
unit, upon request of the successor employing unit, the experience record
for rate computation purposes of the predecessor shall thereupon be
deemed the experience record of the successor and such successor, unless
already an employer subject to this act, shall be subject to the rate of
taxation of the predecessor, but if such successor is at the time of such
transfer an employer subject to this act, such successor’s rate of tax to
which it is then subject shall remain the same until the next determination
of rates under this section for all employers, at which time the experience
of the predecessor and the successor shall be deemed to be the experience
of a single employing unit and such successor’s rate shall thereupon be de-
termined upon the basis of such combined experience. The waivers re-
quired herein shall be filed with the Commission not later than February
fifteenth of the year for which the rate of the successor employing unit
is determined, except for the year nineteen hundred and forty-two such
waiver may be filed before the sixteenth day after the effective date of
this amendment. | | _

Section 12. Employment Service—(a) Virginia State Employ-
ment Service—All rights, powers and duties heretofore vested in the
Department of Labor and Industry, the Free Employment Bureau of the
said Department, and in the Commissioner of Labor, with respect to the
establishment, maintenance and operation of free employment offices ir
the State, are hereby transferred to and vested in the Commission, whict
shall possess, exercise and perform the same through a division known as
the Virginia State Employment Service. The Commission through the
division shall establish and maintain free public employment offices ir
such number and in such places as may be necessary for the proper ad,
ministration of this act. The provisions of an act passed by the Congres:
of the United States and approved on June sixth, nineteen hundred anc
thirty-three, entitled “An act to provide for the establishment of ;
national employment system and for cooperation with the States in the
promotion of such system, and for other purposes”, having heretofor
been accepted by and on behalf of this State, the Commission, throug!
the Virginia State Employment Service, is hereby designated, in lieu o:
the Department of Labor and Industry through the Free Employmen
Bureau thereof, as the State agency and vested with all powers necessary
to cooperate with the United States Employment Service in accordance
with the terms and conditions expressed in said act of the Congress of
the United States herein referred to. The Commission may cooperate
with or enter into agreements with the Railroad Retirement Board wit
respect to the maintenance and use of free employment service facilities.

(b) Financing—The Treasurer of Virginia is hereby authorized
and empowered to receive all grants of money apportioned to this State
under the act of the Congress of the United States referred to in the next
preceding paragraph of this act. All such funds so received shall be paid
into the separate employment service account in the unemployment com-
pensation administration fund, and are hereby specifically appropriated
to the Commission for the purpose or purposes for which they are granted
unto this State. The disposition and control of all unexpended appropria-
tions standing to the credit of the Department of Labor and Industry for
the maintenance of public employment service is hereby transferred to
and vested in the Commission, to be credited by the Comptroller to the
said employment service account in the unemployment compensation
administration fund.

For the purpose of maintaining and using free public employment
service facilities, the Commission is authorized to enter into agreements
with the Railroad Retirement Board, or any other agency of the United
States charged with the administration of an unemployment compensation
law, and as a part of any such agreement the Commission may accept
moneys, services, or quarters as a contribution to the employment service
account.

Section 14. Collection of Contributions——(a) Interest on Past-
Due Contributions.—Contributions unpaid on the date on which they are
due and payable, as prescribed by the Commission pursuant to the pro-
visions of section seven, shall bear interest at the rate of one per centum
per month from and after such date until payment plus accrued interest is
received by the Commission. Interest collected pursuant to this subsection
shall be paid into the unemployment compensation fund.

(b) Collection —If, after due notice, any employer defaults in any
sayment of contributions or interest thereon, the amount due shall be
-ollected by civil action in the name of the Commission, and the employer
idjudged in default shall pay the costs of such action. Civil actions
orought under this section to collect contributions or interest thereon
‘rom an employer shall be heard by the court at the earliest possible date.
in addition to the foregoing remedy the Commission shall have such
‘ther remedies as are available to the State Tax Commissioner and
‘ounty and city treasurers for the collection of taxes generally. The Com-
cH. 317] ACTS OF ASSEMBLY 473

mission is hereby authorized to compromise, settle and adjust any tax or
taxes assessed against any employer where in the judgment of the Com-
mission the best interests of the Commonwealth of Virginia will be
promoted or served thereby and may in such cases accept in full settle-
ment of the tax assessed an amount less than that assessed.

(c) Priorities under legal dissolutions or distributions.——In the
event of any distribution of an employer’s assets, contributions then or
thereafter due shall be a lien against such assets, prior to all claims of
lien and general creditors. Contributions accruing by reason of any
employment for an employer who is a receiver, trustee or other fiduciary
shall be a lien against all the assets in the custody or control of such
receiver, trustee or other fiduciary, prior and paramount to all other
claims of lien and general creditors. Nothing in this section shall be
construed in derogation of any prior lien of the Commonwealth of Vir-
ginia or any of its political subdivisions now existing or hereafter created
by law, nor any mortgage, deed of trust or other lien duly perfected prior
to the date the contributions or any part thereof first accrued, provided
that no such lien in favor of the Commonwealth of Virginia or any of its
subdivisions, nor any mortgage, deed of trust or other lien shall in any
case be preferred, paramount or prior to the lien for contributions due
by any such receiver, trustee or other fiduciary upon payrolls earned in
the employment of such receiver, trustee or other fiduciary.

(1) The contributions or tax imposed by section seven and sub-
sections thereunder, of this act shall be a lien upon the assets of the busi-
néss of any employer subject to the provisions hereof who shall lease,
transfer or sell out his business, or shall cease to do business and such
employer shall be required, by the next reporting date as prescribed by
the Commission, to file with the Commission all reports and pay all contri-
butions due with respect to wages payable for employment up to the date
of such lease, transfer, sale or cessation of the business and such em-
ployer’s successor in business shall be required to withhold sufficient of
the purchase money to cover the amount of said contributions due and
unpaid until such time as the former owner or employer shall produce a
receipt from the Commission showing that the contributions have been
paid, or a certificate that no contributions are due. If the purchaser of a
business or a successor of such employer shall fail to withhold purchase
money or any money due to such employer in consideration of a lease or
other transfer and the contributions shall be due and unpaid after the
next reporting date, as above set forth, such successor shall be personally
liable to the extent of the assets of the business so acquired for the pay-
ment of the contributions accrued and unpaid on account of the operation
of the business by the former owner or employer. Whenever the pur-
chaser or successor of such employer shall file with the Commission a
written request for a statement showing the amount of tax, if any, due
by such employer, unless such statement is furnished to such purchaser
or successor of such employer within ninety days from the date such
written request was filed, such purchaser or successor shall not be liable
for any tax or taxes due by such employer, and the lien created by this
subsection shall thereupon be released and discharged.
(d) Refund.—If not later than two years after the date on which
any contributions or interest thereon are paid, an employing unit which
has paid such contributions or interest thereon shall make application for
adjustment thereof in connection with subsequent contribution payments,
or for a refund thereof because such adjustment cannot be made, and
the Commission shall determine that such contributions or interest or any
portion thereof was erroneously collected, the Commission shall allow
such employing unit to make an adjustment thereof, without interest, in
connection with subsequent contribution payments by him, or if such
adjustment cannot be made the Commission shall refund said amount,
without interest, from the fund. For like cause and within the same
period, adjustment or refund may be so made on the Commission’s own
initiative.

(1) <Any employing unit which the Commission finds has erron-
eously paid prior to June thirtieth, nineteen hundred and forty-one such
contributions or interest for the calendar year nineteen hundred and
thirty-six, nineteen hundred and thirty-seven, nineteen hundred and thir-
ty-eight, nineteen hundred and thirty-nine, nineteen hundred and forty, or
nineteen hundred and forty-one, applying for refund or adjustment
before the sixtieth day after the effective date of this amendment, shall,
without regard to the due date thereof, be entitled to a refund or adjust-
ment thereof, without interest, from the fund.

(2) In any case where the Commission finds that any employing
unit has erroneously paid to this State contributions or interest upon
wages earned by individuals in employment in another State, or under
the provisions of the Federal Railroad Unemployment Insurance Act,
refund or adjustment thereof shall be made, without interest, and without
regard to the due date thereof, upon satisfactory proof to the Commission
that payment of such contributions or interest has been made to such
other jurisdiction.

(3) In any case where the Commission finds that an instrumen-
tality of the United States has paid to this State contributions or interest
upon wages for any year with respect to which this State is not certified
by the Social Security Board under section sixteen hundred and three of
the Federal Internal Revenue Code, refund thereof shall be made to such
instrumentality, without interest, and without regard to the date of
payment.

Section 16. Penalties——(a) Whoever makes a false statement or
representation knowing it to be false or knowingly fails to disclose a
material fact, to obtain or increase any benefit or other payment under
this act, or the unemployment compensation act of any other State, either
for himself or for any other person, shall be guilty of a misdemeanor
and on conviction thereof shall be punished accordingly ; each such false
statement or representation or failure to disclose a material fact shall
constitute a separate offense.

(b) Any employing unit or any officer or agent of an employing
unit or any other person who makes a false statement or representation
knowing it to be false, or who knowingly fails to disclose a material fact,
to prevent or reduce the payment of benefits to any individual entitled
thereto, or to avoid becoming or remaining subject hereto or to avoid or
reduce any contribution or other payment required from an employing
unit under this act, or who wilfully fails or refuses to furnish any reports
required hereunder or to produce or permit the inspection or copying of
records as required hereunder, shall be guilty of a misdemeanor and upon
conviction thereof shall be punished accordingly ; each such false state-
ment or representation or failure to disclose a material fact, and each day
of such failure or refusal shall constitute a separate offense.

(c) Any person who shall wilfully violate any provision of this
act or any valid rule or regulation thereunder, the violation of which is
made unlawful or the observance of which is required under the terms of
this act, and for which a penalty is neither prescribed herein nor provided
by any other applicable statute, shall be guilty of a misdemeanor and
upon conviction thereof shall be punished accordingly; each day such
violation continues shall be deemed to be a separate offense.

(d) Any person who, by reason of his fraud has received any
sum as benefits under this act to which he was not entitled shall, in the
discretion of the commission, be liable to repay such sum to the Commis-
sion for the fund or to have such sum deducted from any future benefits
payable to him under this act. If any person, other than by reason of his
fraud, has received any sum as benefits under this act to which he has
been subsequently found not entitled, he shall not be liable to repay such
sum but shall, in the discretion of the Commission, be liable to have such
sum deducted from any future benefits payable to him with respect to
the benefit year current at the time of such receipt; provided, however,
that no such recoupment from future benefits shall be had if such sum
was received by such person without fault on his part and such recoup-
ment would defeat the purpose of this act or would be against equity and
good conscience. In any case in which under this subsection a claimant is
liable to repay to the commission any sum for the fund, such sum shall be
collectible without interest by civil action in the name of the Commission.

2. An emergency exists and this act is in force from its passage.