S T A T E O F N E W Y O R K
________________________________________________________________________
9047
I N A S S E M B L Y
January 17, 2012
___________
Introduced by M. of A. KOLB -- read once and referred to the Committee
on Labor
AN ACT to amend the labor law, in relation to unemployment insurance
experience rating transfer requirements when a business is acquired by
another business
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 4 and subparagraph 1 of paragraph (a) of subdi-
vision 7 of section 581 of the labor law, subdivision 4 as added by
chapter 645 of the laws of 1951, paragraph (d) of subdivision 4 as added
by chapter 728 of the laws of 1952, and subparagraph 1 of paragraph (a)
of subdivision 7 as added by chapter 391 of the laws of 2005, are
amended to read as follows:
4. Transfers of accounts. (a) Where an employer subsequent to July
first, nineteen hundred fifty-one, transfers his or its organization,
trade or business in whole or in part, the transferee [shall] MAY ELECT
TO take over and continue the employer's account, including its balance
and all other aspects of its experience under this article, in propor-
tion to the payroll or employees assignable to the transferred organiza-
tion, trade or business determined for the purpose of this article by
the commissioner. The account taken over by the transferee shall remain
chargeable with respect to benefits based on employment in the trans-
ferred organization, trade or business, and all such employment shall be
deemed employment performed for the transferee.
(b) [The] IN THE EVENT OF A TRANSFER THE rate of contribution applica-
ble to the accounts of the transferee and the transferring employer with
respect to the calendar year in which the transfer occurred shall be
respectively determined or redetermined as of the computation date in
the preceding calendar year, and such rates shall apply from the date of
the transfer to the end of the calendar year in which the transfer
occurred. The rate of contribution applicable to the accounts of the
transferee and the transferring employer with respect to the calendar
year following the calendar year in which the transfer occurred shall be
respectively determined or redetermined as of the computation date in
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13943-01-2
A. 9047 2
the same calendar year. The commissioner shall allocate to the
transferee's account for each period in question the proportion of the
transferring employer's payroll, which the commissioner determines to be
properly assignable to the organization, trade or business transferred.
(c) [No transfer shall be deemed to have occurred if the commissioner
on his own motion or on application of any interested party finds that
all of the following conditions exist:
(1) the transferee has not assumed any of the transferring employer's
obligations, and
(2) the transferee has not acquired any of the transferring employer's
good will, and
(3) the transferee has not continued or resumed the business of the
transferring employer either in the same establishment or elsewhere, and
(4) the transferee has not employed substantially the same employees
as those the transferring employer had employed in connection with the
organization, trade, business, or part thereof transferred.
(d) No transfer shall be deemed to have occurred unless either the
transferring employer or the transferee has given notice of the transfer
to the commissioner prior to the termination of the calendar year
following the calendar year in which the transfer occurred]
THE COMMISSIONER SHALL PRESCRIBE THE FORM BY WHICH AN ELECTION MAY BE
MADE UNDER THIS SUBDIVISION AND SHALL PROMULGATE THE RULES AND REGU-
LATIONS NECESSARY IN CARRYING OUT THE PROVISIONS OF THIS SUBDIVISION
PROVIDED THAT:
(1) AN ELECTION MADE UNDER THIS SUBDIVISION MUST BE MADE WITHIN THIRTY
DAYS OF THE TRANSFER OF AN ORGANIZATION, TRADE OR BUSINESS; AND
(2) IN THE ABSENCE OF AN ELECTION MADE UNDER THIS SUBDIVISION THE
TRANSFEREE SHALL NOT TAKE OVER AND CONTINUE THE EMPLOYER'S ACCOUNT,
INCLUDING ITS BALANCE AND ALL OTHER ASPECTS OF ITS EXPERIENCE UNDER THIS
ARTICLE, UNLESS SUCH TRANSFER MEETS THE EXPERIENCE RATING TRANSFER
REQUIREMENTS UNDER SUBDIVISION SEVEN OF THIS SECTION.
(1) If an employer transfers its organization, trade or business, or a
portion thereof, to another employer and, at the time of the transfer,
there is at least ten percent common ownership, management or control of
the two employers, then the unemployment experience attributable to the
transferred organization, trade or business shall be transferred to the
employer to whom such organization, trade or business is so transferred.
[In addition to the provisions of this subdivision, the transfer
provisions of paragraphs (a), (b) and (d) of subdivision four of this
section shall apply to such transfers.] For purposes of this subdivision
"organization, trade or business" shall include the employer's work-
force.
S 2. This act shall take effect on the sixtieth day after it shall
have become a law and shall apply to transfers taking place on or after
such date.