March 16, 2011, Introduced by Rep. Somerville and referred to the Committee on Commerce.
A bill to amend 1936 (Ex Sess) PA 1, entitled
"Michigan employment security act,"
by amending section 54 (MCL 421.54), as amended by 2002 PA 192.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 54. (a) A person who willfully violates or intentionally
fails to comply with any of the provisions of this act, or a
regulation
of the commission unemployment
agency promulgated under
the authority of this act for which a penalty is not otherwise
provided
by this act is punishable as provided in subdivision (i),
(ii), (iii), or
(iv), subject
to the following sanctions,
notwithstanding any other statute of this state or of the United
States:
(i) If the commission unemployment agency determines that an
amount has been obtained or withheld as a result of the intentional
failure
to comply with this act, the commission unemployment agency
may recover the amount obtained as a result of the intentional
failure to comply plus damages equal to 3 times that amount.
(ii) The commission unemployment agency may refer the matter to
the prosecuting attorney of the county in which the alleged
violation
occurred for prosecution. If the commission unemployment
agency has not made its own determination under subdivision (i), the
penalty
recovery sought by the prosecutor shall include the amount
described in subdivision (i) and shall also include 1 or more of the
following penalties:
(A) If the amount obtained or withheld from payment as a
result of the intentional failure to comply is less than
$25,000.00, then 1 of the following:
(I) Imprisonment for not more than 1 year.
(II) The performance of community service of not more than 1
year but not to exceed 2,080 hours.
(III) A combination of (I) and (II) that does not exceed 1
year.
(B) If the amount obtained or withheld from payment as a
result of the intentional failure to comply is $25,000.00 or more
but less than $100,000.00, then 1 of the following:
(I) Imprisonment for not more than 2 years.
(II) The performance of community service of not more than 2
years but not to exceed 4,160 hours.
(III) A combination of (I) and (II) that does not exceed 2
years.
(C) If the amount obtained or withheld from payment as a
result of the intentional failure to comply is more than
$100,000.00, then 1 of the following:
(I) Imprisonment for not more than 5 years.
(II) The performance of community service of not more than 5
years but not to exceed 10,400 hours.
(III) A combination of (I) and (II) that does not exceed 5
years.
(iii) If the commission unemployment agency determines that an
amount has been obtained or withheld as a result of a knowing
violation
of this act, the commission unemployment
agency may
recover the amount obtained as a result of the knowing violation
and may also recover damages equal to 3 times that amount.
(iv) The commission unemployment agency may refer a matter
under subdivision (iii) to the prosecuting attorney of the county in
which the alleged violation occurred for prosecution. If the
commission
unemployment agency has not made its own determination
under
subdivision (iii), the penalty recovery sought
by the
prosecutor shall include the amount described in subdivision (iii)
and
shall also include 1 or more of the following: penalties:
(A) If the amount obtained or withheld from payment as a
result of the knowing violation is $100,000.00 or less, then 1 of
the following:
(I) Imprisonment for not more than 1 year.
(II) The performance of community service of not more than 1
year but not to exceed 2,080 hours.
(III) A combination of (I) and (II) that does not exceed 1
year.
(B) If the amount obtained or withheld from payment as a
result of the knowing violation is more than $100,000.00, then 1 of
the following:
(I) Imprisonment for not more than 2 years.
(II) The performance of community service of not more than 2
years but not to exceed 4,160 hours.
(III) A combination of (I) and (II) that does not exceed 2
years.
(b) Any employing unit or an officer or agent of an employing
unit,
a claimant, an employee of the commission unemployment
agency, or any other person who makes a false statement or
representation knowing it to be false, or knowingly and willfully
with intent to defraud fails to disclose a material fact, to obtain
or increase a benefit or other payment under this act or under the
unemployment compensation law of any state or of the federal
government, either for himself or herself or any other person, to
prevent or reduce the payment of benefits to an individual entitled
thereto or to avoid becoming or remaining a subject employer, or to
avoid or reduce a contribution or other payment required from an
employing unit under this act or under the unemployment
compensation law of any state or of the federal government, as
applicable, is subject to administrative fines and is punishable as
follows, notwithstanding any other penalties imposed under any
other statute of this state or of the United States:
(i) If the amount obtained as a result of the knowing false
statement or representation or the knowing and willful failure to
disclose
a material fact is less than $500.00, the commission
unemployment agency may recover the amount obtained as a result of
the knowing false statement or representation or the knowing and
willful failure to disclose a material fact and may also recover
damages equal to 2 times that amount. For a second or subsequent
violation described in this subdivision, the unemployment agency
may recover damages equal to 4 times the amount obtained.
(ii) If the amount obtained as a result of the knowing false
statement or representation or the knowing and willful failure to
disclose
a material fact is $500.00 or more, the commission
unemployment agency shall attempt to recover the amount obtained as
a result of the knowing false statement or representation or the
knowing and willful failure to disclose a material fact and may
also
recover damages equal to 4 times that amount. The commission
unemployment agency may refer the matter to the prosecuting
attorney of the county in which the alleged violation occurred for
prosecution.
If the commission unemployment
agency has not made its
own
determination under this subdivision, the penalty recovery
sought by the prosecutor shall include the amount described in this
subdivision and shall also include 1 or more of the following
penalties if the amount obtained is $1,000.00 or more:
(A) If the amount obtained or withheld from payment as a
result of the knowing false statement or representation or the
knowing and willful failure to disclose a material fact is
$1,000.00 or more but less than $25,000.00, then 1 of the
following:
(I) Imprisonment for not more than 1 year.
(II) The performance of community service of not more than 1
year but not to exceed 2,080 hours.
(III) A combination of (I) and (II) that does not exceed 1
year.
(B) If the amount obtained or withheld from payment as a
result of the knowing false statement or representation or the
knowing and willful failure to disclose a material fact is
$25,000.00 or more, then 1 of the following:
(I) Imprisonment for not more than 2 years.
(II) The performance of community service of not more than 2
years but not to exceed 4,160 hours.
(III) A combination of (I) and (II) that does not exceed 2
years.
(C) If the knowing false statement or representation or the
knowing and willful failure to disclose a material fact made to
obtain or withhold an amount from payment does not result in a loss
to
the commission unemployment
agency, then a penalty recovery
shall be sought equal to 3 times the amount that would have been
obtained by the knowing false statement or representation or the
knowing and willful failure to disclose a material fact, but not
less than $1,000.00, and 1 of the following:
(I) Imprisonment for not more than 2 years.
(II) The performance of community service of not more than 2
years but not to exceed 4,160 hours.
(III) A combination of (I) and (II) that does not exceed 2
years.
(c) (1) Any employing unit or an officer or agent of an
employing unit or any other person failing to submit, when due, any
contribution report, wage and employment report, or other reports
lawfully
prescribed and required by the commission unemployment
agency
shall be subject to the assessment of a
penalty an
administrative fine for each report not submitted within the time
prescribed
by the commission unemployment
agency, as follows: In
the case of contribution reports not received within 10 days after
the
end of the reporting month the penalty fine shall be 10% of the
contributions due on the reports but not less than $5.00 or more
than $25.00 for a report. However, if the tenth day falls on a
Saturday,
Sunday, legal holiday, or other commission unemployment
agency nonwork day, the 10-day period shall run until the end of
the next day which is not a Saturday, Sunday, legal holiday, or
other
commission unemployment
agency nonwork day. In the case of
all
other reports referred to in this subsection, the penalty fine
shall be $10.00 for a report.
(2) Notwithstanding subdivision (1), any employer or an
officer or agent of an employer or any other person failing to
submit, when due, any quarterly wage detail report required by
section
13(2) shall be is subject to a penalty an administrative
fine of $25.00 for each untimely report.
(3)
When If a report is filed after the prescribed time and it
is
shown to the unemployment
agency's satisfaction of the
commission that the failure to submit the report was due to
reasonable
cause, a penalty fine shall not be imposed. The
assessment
of a penalty fine as provided in this subsection shall
constitute
constitutes a final
determination which shall be final
unless
the employer files with the commission an application for a
redetermination of the assessment in accordance with section 32a.
(d)
If any commissioner, employee
, or agent of the commission
unemployment
agency or member of the appeal board
willfully makes a
disclosure
of discloses confidential information obtained from any
employing unit or individual in the administration of this act for
any purpose inconsistent with or contrary to the purposes of this
act,
or a person who having obtained obtains
a list of applicants
for
work , or of
claimants or recipients of benefits
, under this
act
shall use or permit the uses
or permits use of that list for a
political purpose or for a purpose inconsistent with or contrary to
the
purposes of this act, he or she is guilty of a misdemeanor and
upon
conviction shall be punished punishable
by imprisonment for
not
more than 90 days , or by
a fine of not more than $1,000.00, or
both.
Notwithstanding the preceding sentence, if any commissioner,
commission
unemployment agency employee, agent of the commission
unemployment agency, or member of the board of review knowingly,
intentionally, and for financial gain, makes an illegal disclosure
of confidential information obtained under section 13(2), he or she
is guilty of a felony, punishable by imprisonment for not more than
1 year and 1 day.
(e)
A person who, without proper authority from the commission
unemployment agency, represents himself or herself to be an
employee
of the commission to an employing unit or person
unemployment agency for the purpose of securing information
regarding the unemployment or employment record of an individual is
guilty
of a misdemeanor and upon conviction shall be punished
punishable
by imprisonment for not more than 90
days , or by
a fine
of not more than $1,000.00, or both.
(f) A person associated with a college, university, or public
agency
of this state who makes use of uses
any information obtained
from
the commission unemployment
agency in connection with a
research project of a public service nature, in a manner as to
reveal the identity of any individual or employing unit from or
concerning
whom the information was obtained by the commission
unemployment agency, or for any purpose other than use in
connection with that research project, is guilty of a misdemeanor
and
upon conviction shall be punished punishable
by imprisonment
for
not more than 90 days , or by
a fine of not more than
$1,000.00, or both.
(g) As used in this section, "person" includes an individual,
copartnership, joint venture, corporation, receiver, or trustee in
bankruptcy.
(h)
This section shall apply applies
even if the amount
obtained or withheld from payment has been reported or reported and
paid by an individual involved in a violation of subsection (a) or
(b).
(i) If a determination is made that an individual has violated
this
section, the individual is subject to the penalty provisions
of
this section and, where if
applicable, the requirements of
section 62.
(j)
Amounts recovered by the commission unemployment agency
under
subsection (a) or (b) shall be credited first to the
unemployment compensation fund and thereafter amounts recovered
that are in excess of the amounts obtained or withheld as a result
of
the violation of subsection (a) and (b) shall be credited to the
penalty
and interest account of the contingent fund. Fines and
penalties
Amounts recovered by the commission unemployment agency
under subsections (c), (d), (e), and (f) shall be credited to the
penalty and interest account of the contingent fund in accordance
with section 10(6).
(k) Amounts recovered by the unemployment agency under
subsection (b) shall be credited as follows:
(i) Deductions from unemployment insurance benefits shall be
applied solely to the amount of the benefits liable to be repaid
under this section.
(ii) All other recoveries shall be applied first to
administrative sanctions and damages, then to interest, and then to
the amount liable to be repaid. The amounts applied to
administrative sanctions, damages, and interest shall be credited
to the special fraud control fund created in section 10.
(l) (k)
The revisions in the penalties in
subsections (a) and
(b) provided by the 1991 amendatory act that added this subsection
shall
apply to conduct that began before
April 1, 1992, but that
continued on or after April 1, 1992, and to conduct that began on
or after April 1, 1992.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 96th Legislature are
enacted into law:
(a) Senate Bill No.____ or House Bill No. 4449(request no.
01742'11).
(b) Senate Bill No.____ or House Bill No. 4451(request no.
01744'11).
(c) Senate Bill No.____ or House Bill No. 4448(request no.
01745'11).