§ 581 — Experience rating

New York § 581

• Jurisdiction: New York
• Law LAB: Labor
• Title 6: Contributions to Fund
• Art. 18: Unemployment Insurance Law

Text

§ 581. Experience rating. 1. Meaning of terms. As used in this\nsection:\n (a) "Computation date" means December thirty-first of any year.\n (b) "Payroll year" means the period beginning on October first of a\nyear and ending on September thirtieth of the next following year.\n (c) "Qualified employer" means any employer whose account reflects his\nor her experience with respect to unemployment throughout not less than\nthe four consecutive completed calendar quarters ending on the\ncomputation date and who has paid some remuneration in the payroll year\npreceding the computation date and filed all contribution returns\nprescribed by the commissioner for the three payroll years preceding the\ncomputation date on or before such date, or has had an amount of\ncontributions due and/or an amount of wages paid determined by the\ncommissioner pursuant to section five hundred seventy-one of this\narticle. If an employer has ceased to be liable for contributions and\nthe employer's account balance is not subject to transfer under the\nprovisions of subdivision four of this section, such account balance\nshall be transferred to the general account on the computation date\ncoinciding with or immediately following the date on which the\nemployer's liability ceased and shall not thereafter be available to\nsuch employer in the event that the employer again becomes liable for\ncontributions.\n (d) "Employer's account" (1) means an account in the fund reflecting\nan employer's experience with respect to contribution payments and\nexperience rating charges under this article. The commissioner shall\nmaintain such an account for every employer liable for contributions\nunder this article; but nothing in this article shall be construed to\ngrant any employer or any of his employees prior claims or rights to the\namount paid by him into the fund and credited to his employer's account,\nor to any other account, including the general account, either on his\nown behalf or on behalf of his employees. All moneys in such fund, from\nwhatever source derived and to whatever account credited, shall be\npooled and available to pay benefits to any individual entitled thereto\nunder this article.\n (2) Any contributions due but not paid within sixty days of the due\ndate prescribed by regulation of the commissioner shall, when paid, not\nbe credited to an employer's account, but shall be credited to the\ngeneral account, unless such payment was made prior to determination and\ndemand by the commissioner pursuant to section five hundred seventy-one\nof this article.\n (3) Payments in lieu of contributions equal to benefits charged in\nthe last three months of a calendar year shall be credited to the\nemployer's account as of the computation date occurring in that year if\npaid within the time prescribed by the commissioner.\n (4) Any employer may at any time make payments to his account in the\nfund in excess of the requirements of this article. Such payments made\nduring the period from April first through March thirty-first of the\nfollowing year shall be credited to the employer's account as of the\ncomputation date occurring within such period.\n (5) For the purpose of determining the size of fund index, all\npayments in lieu of contributions and voluntary, excess contribution\npayments made by employers shall be included in the fund balance on the\ncomputation date next following the date of payments. Such excess\ncontributions shall be irrevocable and not subject to refund or credit\nafter acceptance by the commissioner and deposit in the fund.\n (e) "Experience rating charge" means a debit to an employer's account\nreflecting a payment of benefits.\n (1) Whenever benefits are paid to a claimant, experience rating\ncharges shall be debited to the appropriate account. The commissioner\nshall notify each employer not more frequently than monthly as to each\nexperience rating charge which is being made to the employer's account.\nSuch notice shall be a determination of the propriety of such charge and\nof the payment of benefits on which such charge was based.\n (2) Benefits payable to any claimant with respect to the claimant's\nthen current benefit year shall be charged, when paid, to the account of\nthe last employer prior to the filing of a valid original claim in an\namount equal to seven times the claimant's benefit rate. Thereafter,\nsuch charges shall be made to the account of each employer in the base\nperiod used to establish the valid original claim in the same proportion\nthat the remuneration paid by each employer to the claimant during that\nbase period bears to the remuneration paid by all employers to the\nclaimant during that base period except as provided below:\n (i) In those instances where the claimant may not utilize wages paid\nto establish entitlement based upon subdivision ten of section five\nhundred ninety of this article and an educational institution is the\nclaimant's last employer prior to the filing of the claim for benefits,\nor the claimant performed services in such educational institution in\nsuch capacity while employed by an educational service agency which is\nthe claimant's last employer prior to the filing of the claim for\nbenefits, such employer shall not be liable for benefit charges in an\namount equal to the benefit paid for seven weeks of total employment as\notherwise provided by this section. Under such circumstances, benefits\npaid shall be charged to the general account. In addition, wages paid\nduring the base period by such educational institutions, or for services\nin such educational institutions for claimants employed by an\neducational service agency shall not be considered base period wages\nduring periods that such wages may not be used to gain entitlement to\nbenefits pursuant to subdivision ten of section five hundred ninety of\nthis article.\n (ii) In those instances where the claimant may not utilize wages paid\nto establish entitlement based upon subdivision eleven of section five\nhundred ninety of this article and an educational institution is the\nclaimant's last employer prior to the filing of the claim for benefits,\nor the claimant performed services in such educational institution in\nsuch capacity while employed by an educational service agency which is\nthe claimant's last employer prior to the filing of the claim for\nbenefits, such employer shall not be liable for benefit charges in an\namount equal to the benefit paid for seven weeks of total employment as\notherwise provided by this section. Under such circumstances, benefits\npaid will be charged to the general account. In addition, wages paid\nduring the base period by such educational institutions, or for services\nin such educational institutions for claimants employed by an\neducational service agency shall not be considered base period wages\nduring periods that such wages may not be used to gain entitlement to\nbenefits pursuant to subdivision eleven of section five hundred ninety\nof this article. However, in those instances where a claimant was not\nafforded an opportunity to perform services for the educational\ninstitution for the next academic year or term after reasonable\nassurance was provided, such employer shall be liable for benefit\ncharges as provided for in this paragraph for any retroactive payments\nmade to the claimant.\n (iii) In those instances where the federal government is the\nclaimant's last employer prior to the filing of the claim for benefits\nand such employer is not a base-period employer, payments equaling an\namount equal to the benefit paid for seven weeks of total employment as\notherwise prescribed by this section shall be charged to the general\naccount. In those instances where the federal government is the\nclaimant's last employer prior to the filing of the claim for benefits\nand a base-period employer, such employer shall be liable for charges\nfor all benefits paid on such claim in the same proportion that the\nremuneration paid by such employer during the base period bears to the\nremuneration paid by all employers during the base period. In addition,\nbenefit payment charges in an amount equal to the benefit paid for seven\nweeks of total employment other than those chargeable to the federal\ngovernment as prescribed above shall be made to the general account.\n (iv) In those instances where a combined wage claim is filed pursuant\nto interstate reciprocal agreements and the claimant's last employer\nprior to the filing of the claim is an out-of-state employer and such\nemployer is not a base-period employer, benefit payments in an amount\nequal to the benefit paid for seven weeks of total employment as\notherwise prescribed by this section shall be charged to the general\naccount. In those instances where the out-of-state employer is the last\nemployer prior to the filing of the claim for benefits and a base-period\nemployer such employer shall be liable for charges for all benefits paid\non such claim in the same proportion that the remuneration paid by such\nemployer during the base period bears to the remuneration paid by all\nemployers during the base period. In addition, benefit payment charges\nin an amount equal to the benefit paid for seven weeks of total\nemployment other than those chargeable to the out-of-state employer as\nprescribed above shall be made to the general account.\n (v) In those instances where the last employer prior to the filing of\na valid original claim has paid total remuneration to the claimant\nduring the period from the start of the base period used to establish\nthe benefit claim until the date of the claimant's filing of the valid\noriginal claim in an amount less than or equal to six times the\nclaimant's benefit rate and the last employer has substantiated such\namount to the satisfaction of the commissioner within ten days of the\ncommissioner's original notice of potential charges to such last\nemployer's account, benefits shall be charged as follows: benefits\npayable to the claimant with respect to the claimant's then current\nbenefit year shall be charged, when paid, to the account of such last\nemployer prior to the filing of a valid original claim in an amount\nequal to the lowest whole number (one, two, three, four, five, or six)\ntimes the claimant's benefit rate where the product of such lowest whole\nnumber times the claimant's benefit rate is equal to or greater than\nsuch total remuneration paid by such last employer to the claimant.\nThereafter, such charges shall be made to the account of each employer\nin the base period used to establish the valid original claim in the\nsame proportion that the remuneration paid by each employer to the\nclaimant during that base period bears to the remuneration paid by all\nemployers to the claimant during that base period. Notice of such\nrecalculation of potential charges shall be given to the last employer\nand each employer of the claimant in the base period used to establish\nthe valid original claim.\n (3) An employer's account shall not be charged, and the charges shall\ninstead be made to the general account, for benefits paid to a claimant\nafter the expiration of a period of disqualification from benefits\nfollowing a final determination that the claimant lost employment with\nthe employer through misconduct or voluntary separation of employment\nwithout good cause within the meaning of section five hundred\nninety-three of this article and the charges are attributable to\nremuneration paid during the claimant's base period of employment with\nsuch employer prior to the claimant's loss of employment with such\nemployer through misconduct or voluntary separation of employment\nwithout good cause, provided, however, that an employer shall not be\nrelieved of charges pursuant to this subparagraph if an employer or its\nagent fails to submit information resulting in an overpayment pursuant\nto section five hundred ninety-seven of this article.\n (4) An employer's account shall not be charged, and the charges shall\ninstead be made to the general account, for benefits paid to a claimant\nbased on base period employment while the claimant was an incarcerated\nindividual of a correctional institution and enrolled in a work release\nprogram, provided that the employment was terminated solely because the\nincarcerated individual was required to relocate to another area as a\ncondition of parole or the incarcerated individual voluntarily relocated\nto another area immediately upon being released or paroled from such\ncorrectional institution.\n (5) If an employer who employed the claimant in the four weeks\nimmediately preceding the filing of a valid original claim demonstrates\nthat the employer has continuously employed the claimant without\nsignificant interruption and substantially to the same extent and in the\nsame manner as during the weeks immediately preceding the filing of a\nvalid original claim in which the claimant was employed by such\nemployer, the account of such employer shall not be charged with\nbenefits paid to such claimant for any weeks of such continuing\nemployment, and such experience rating charges shall be made to the\ngeneral account. The provisions set forth in the foregoing sentence\nshall apply with respect to an employer liable for payments in lieu of\ncontributions, but if the secretary of labor of the United States finds\nthat their application to such employer does not meet the requirements\nof the federal unemployment tax act, such provisions shall not\nthereafter apply to such employer, unless and until such finding has\nbeen set aside pursuant to a final decision issued in accordance with\nsuch judicial review proceedings as may be instituted and completed\nunder the provisions of section thirty-three hundred ten of the federal\nunemployment tax act.\n (6) An employer's account shall not be debited to the extent that the\nfederal government reimburses the fund for benefits paid.\n If on any computation date an employer's account registers a negative\nbalance, an amount equivalent to the excess of the negative balance over\ntwenty-one per centum of the employer's payroll in the payroll year\npreceding such date shall be transferred as a charge to the general\naccount, except that this provision shall not apply to any negative\nbalance, or that portion thereof, which results from benefits charged\nwith respect to which the employer is liable for payments in lieu of\ncontributions.\n (f) "Employer's account percentage" means the status of an employer's\naccount on any computation date. It is the balance remaining in the\naccount, after contributions have been credited and experience rating\ncharges have been debited to it, stated as percentage of his average\npayroll for the last five payroll years preceding the computation date\nor for all quarters if the employer has been liable for contributions\nfor fewer than twenty-one quarters. Such percentage shall be computed to\ntwo decimal places and the remaining fraction if any, disregarded. If,\nhowever, the number of consecutive completed calendar quarters ending on\nthe computation date during which the employer has been liable for\ncontributions hereunder is twenty-one or less the employer's account\npercentage, if it is positive, shall be multiplied by that figure\nassigned to the employer designated as "employer's benefit equalization\nfactor" which is listed below on the same horizontal line on which the\nnumber of quarters of employer liability appears, and the product\nresulting therefrom shall constitute the employer's account percentage.\nNumber of quarters Employer's benefit\nof employer liability equalization factor\n 5 ...................................... 3.00\n 6 ...................................... 2.50\n 7 ...................................... 2.05\n 8 ...................................... 1.75\n 9 ...................................... 1.55\n 10 ..................................... 1.40\n 11 ..................................... 1.25\n 12 ..................................... 1.12\n 13 ..................................... 1.04\n 14 through 21........................... 1.00\n (g) "Size of fund index" means the lesser of the following two\npercentages:\n (1) the percentage obtained by dividing the moneys in the fund as of a\ncomputation date by the total of all payrolls for the payroll year\npreceding such date; or (2) the percentage obtained by dividing such\nmoneys by the average of the totals of all payrolls for the five\nconsecutive payroll years preceding such date. Such percentage shall be\ncomputed to one decimal place and the remaining fraction, if any,\ndisregarded.\n (h) "Payroll" means all wages paid by an employer to his employees.\n 2. Rates of contribution.\n (a) Each qualified employer's rate of contribution shall be the\npercentage shown in the column headed by the size of the fund index as\nof the computation date and on the same line with his or her negative or\npositive employer's account percentage, except that if within the three\npayroll years preceding the computation date any part of a negative\nbalance has been transferred from any employer's account as a charge to\nthe general account pursuant to the provisions of paragraph (e) of\nsubdivision one of this section such employer's rate of contribution\nshall be the maximum contribution rate as shown in the column headed by\nthe size of fund index;\n Size of Fund Index\nEmployer's\nAccount\nPercentage Less 0% 0.5% 1.0% 1.5% 2.0% 2.5% 3.0% 3.5% 4.0% 4.5% 5.0%\n Than but but but but but but but but but but or\n 0% less less less less less less less less less less more\n than than than than than than than than than than\n 0.5% 1.0% 1.5% 2.0% 2.5% 3.0% 3.5% 4.0% 4.5% 5.0%\nNegative\n21.0%\nor more 8.90 8.70 8.50 8.30 8.10 7.30 6.90 6.50 6.20 6.10 6.00 5.90\n20.5%\nor more\nbut less\nthan 21.0% 8.80 8.60 8.40 8.20 8.00 7.20 6.80 6.40 6.10 6.00 5.90 5.80\n20.0%\nor more\nbut less\nthan 20.5% 8.70 8.50 8.30 8.10 7.90 7.10 6.70 6.30 6.00 5.90 5.80 5.70\n19.5%\nor more\nbut less\nthan 20.0% 8.60 8.40 8.20 8.00 7.80 7.00 6.60 6.20 5.90 5.80 5.70 5.60\n19.0%\nor more\nbut less\nthan 19.5% 8.50 8.30 8.10 7.90 7.70 6.90 6.50 6.10 5.80 5.70 5.60 5.50\n18.5%\nor more\nbut less\nthan 19.0% 8.40 8.20 8.00 7.80 7.60 6.80 6.40 6.00 5.70 5.60 5.50 5.40\n18.0%\nor more\nbut less\nthan 18.5% 8.30 8.10 7.90 7.70 7.50 6.70 6.30 5.90 5.60 5.50 5.40 5.30\n17.5%\nor more\nbut less\nthan 18.0% 8.20 8.00 7.80 7.60 7.40 6.60 6.20 5.80 5.50 5.40 5.30 5.20\n17.0%\nor more\nbut less\nthan 17.5% 8.10 7.90 7.70 7.50 7.30 6.50 6.10 5.70 5.40 5.30 5.20 5.10\n16.5%\nor more\nbut less\nthan 17.0% 8.00 7.80 7.60 7.40 7.20 6.40 6.00 5.60 5.30 5.20 5.10 5.00\n16.0%\nor more\nbut less\nthan 16.5% 7.90 7.70 7.50 7.30 7.10 6.30 5.90 5.50 5.20 5.10 5.00 4.90\n15.5%\nor more\nbut less\nthan 16.0% 7.80 7.60 7.40 7.20 7.00 6.20 5.80 5.40 5.10 5.00 4.90 4.80\n15.0%\nor more\nbut less\nthan 15.5% 7.70 7.50 7.30 7.10 6.90 6.10 5.70 5.30 5.00 4.90 4.80 4.70\n14.5%\nor more\nbut less\nthan 15.0% 7.60 7.40 7.20 7.00 6.80 6.00 5.60 5.20 4.90 4.80 4.70 4.60\n14.0%\nor more\nbut less\nthan 14.5% 7.50 7.30 7.10 6.90 6.70 5.90 5.50 5.10 4.80 4.70 4.60 4.50\n13.5%\nor more\nbut less\nthan 14.0% 7.40 7.20 7.00 6.80 6.60 5.80 5.40 5.00 4.70 4.60 4.50 4.40\n13.0%\nor more\nbut less\nthan 13.5% 7.30 7.10 6.90 6.70 6.50 5.70 5.30 4.90 4.60 4.50 4.40 4.30\n12.5%\nor more\nbut less\nthan 13.0% 7.20 7.00 6.80 6.60 6.40 5.60 5.20 4.80 4.50 4.40 4.30 4.20\n12.0%\nor more\nbut less\nthan 12.5% 7.10 6.90 6.70 6.50 6.30 5.50 5.10 4.70 4.40 4.30 4.20 4.10\n11.5%\nor more\nbut less\nthan 12.0% 7.00 6.80 6.60 6.40 6.20 5.40 5.00 4.60 4.30 4.20 4.10 4.00\n11.0%\nor more\nbut less\nthan 11.5% 6.90 6.70 6.50 6.30 6.10 5.30 4.90 4.50 4.20 4.10 4.00 3.90\n10.5%\nor more\nbut less\nthan 11.0% 6.80 6.60 6.40 6.20 6.00 5.20 4.80 4.40 4.10 4.00 3.90 3.80\n10.0%\nor more\nbut less\nthan 10.5% 6.70 6.50 6.30 6.10 5.90 5.10 4.70 4.30 4.00 3.90 3.80 3.70\n9.5%\nor more\nbut less\nthan 10.0% 6.60 6.40 6.20 6.00 5.80 5.00 4.60 4.20 3.90 3.80 3.70 3.60\n9.0%\nor more\nbut less\nthan 9.5% 6.50 6.30 6.10 5.90 5.70 4.90 4.50 4.10 3.80 3.70 3.60 3.50\n8.5%\nor more\nbut less\nthan 9.0% 6.40 6.20 6.00 5.80 5.60 4.80 4.40 4.00 3.70 3.60 3.50 3.40\n8.0%\nor more\nbut less\nthan 8.5% 6.30 6.10 5.90 5.70 5.50 4.70 4.30 3.90 3.60 3.50 3.40 3.30\n7.0%\nor more\nbut less\nthan 8.0% 6.20 6.00 5.80 5.60 5.40 4.60 4.20 3.80 3.50 3.40 3.30 3.20\n6.0%\nor more\nbut less\nthan 7.0% 6.10 5.90 5.70 5.50 5.30 4.50 4.10 3.70 3.40 3.30 3.20 3.10\n5.0%\nor more\nbut less\nthan 6.0% 6.00 5.80 5.60 5.40 5.20 4.40 4.00 3.60 3.30 3.20 3.10 3.00\n4.0%\nor more\nbut less\nthan 5.0% 5.90 5.70 5.50 5.30 5.10 4.30 3.90 3.50 3.20 3.10 3.00 2.90\n3.0%\nor more\nbut less\nthan 4.0% 5.60 5.40 5.20 5.00 4.80 4.20 3.80 3.40 3.10 3.00 2.90 2.80\n2.0%\nor more\nbut less\nthan 3.0% 5.50 5.30 5.10 4.90 4.70 4.10 3.70 3.30 3.00 2.90 2.80 2.70\n1.0%\nor more\nbut less\nthan 2.0% 5.40 5.20 5.00 4.80 4.60 4.00 3.60 3.20 2.90 2.80 2.70 2.60\nLess\nthan 1.0% 5.20 5.00 4.80 4.60 4.40 3.80 3.40 3.00 2.70 2.60 2.50 2.40\nPositive\nLess\nthan 1.0% 4.10 3.90 3.70 3.50 3.30 2.90 2.50 2.10 1.90 1.80 1.70 1.60\n1.0%\nor more\nbut less\nthan 2.0% 4.00 3.80 3.60 3.40 3.20 2.80 2.40 2.00 1.80 1.70 1.60 1.50\n2.0%\nor more\nbut less\nthan 3.0% 3.90 3.70 3.50 3.30 3.10 2.70 2.30 1.90 1.70 1.60 1.50 1.40\n3.0%\nor more\nbut less\nthan 4.0% 3.80 3.60 3.40 3.20 3.00 2.60 2.20 1.80 1.60 1.50 1.40 1.30\n4.0%\nor more\nbut less\nthan 5.0% 3.70 3.50 3.30 3.10 2.90 2.50 2.10 1.70 1.50 1.40 1.30 1.20\n5.0%\nor more\nbut less\nthan 5.5% 3.60 3.40 3.20 3.00 2.80 2.40 2.00 1.60 1.40 1.30 1.20 1.10\n5.5%\nor more but\nless than\n5.75% 3.50 3.30 3.10 2.90 2.70 2.30 1.90 1.50 1.30 1.20 1.10 1.00\n5.75%\nor more\nbut less\nthan 6.0% 3.40 3.20 3.00 2.80 2.60 2.20 1.80 1.40 1.20 1.10 1.00 0.90\n6.0%\nor more but\nless than\n6.25% 3.30 3.10 2.90 2.70 2.50 2.10 1.70 1.30 1.10 1.00 0.90 0.80\n6.25%\nor more\nbut less\nthan 6.5% 3.20 3.00 2.80 2.60 2.40 2.00 1.60 1.20 1.00 0.90 0.80 0.70\n6.5%\nor more but\nless than\n6.75% 3.10 2.90 2.70 2.50 2.30 1.90 1.50 1.10 0.90 0.80 0.70 0.60\n6.75%\nor more\nbut less\nthan 7.0% 3.00 2.80 2.60 2.40 2.20 1.80 1.40 1.00 0.80 0.70 0.60 0.50\n7.0%\nor more but\nless than\n7.25% 2.90 2.70 2.50 2.30 2.10 1.70 1.30 0.90 0.70 0.60 0.50 0.40\n7.25%\nor more\nbut less\nthan 7.5% 2.80 2.60 2.40 2.20 2.00 1.60 1.20 0.80 0.60 0.50 0.40 0.30\n7.5%\nor more but\nless than\n7.75% 2.70 2.50 2.30 2.10 1.90 1.50 1.10 0.70 0.50 0.40 0.30 0.20\n7.75%\nor more\nbut less\nthan 8.0% 2.60 2.40 2.20 2.00 1.80 1.40 1.00 0.60 0.40 0.30 0.20 0.10\n8.0%\nor more but\nless than\n8.25% 2.50 2.30 2.10 1.90 1.70 1.30 0.90 0.50 0.30 0.20 0.10 0.00\n8.25%\nor more\nbut less\nthan 8.5% 2.40 2.20 2.00 1.80 1.60 1.20 0.80 0.40 0.20 0.10 0.00 0.00\n8.5%\nor more but\nless than\n8.75% 2.30 2.10 1.90 1.70 1.50 1.10 0.70 0.30 0.10 0.00 0.00 0.00\n8.75%\nor more\nbut less\nthan 9.0% 2.20 2.00 1.80 1.60 1.40 1.00 0.60 0.20 0.00 0.00 0.00 0.00\n9.0%\nor more but\nless than\n9.25% 2.10 1.90 1.70 1.50 1.30 0.90 0.50 0.10 0.00 0.00 0.00 0.00\n9.25%\nor more\nbut less\nthan 9.5% 2.00 1.80 1.60 1.40 1.20 0.80 0.40 0.00 0.00 0.00 0.00 0.00\n9.5%\nor more but\nless than\n9.75% 1.90 1.70 1.50 1.30 1.10 0.70 0.30 0.00 0.00 0.00 0.00 0.00\n9.75%\nor more but\nless than\n10.0% 1.80 1.60 1.40 1.20 1.00 0.60 0.20 0.00 0.00 0.00 0.00 0.00\n10.0%\nor more but\nless than\n10.25% 1.70 1.50 1.30 1.10 0.90 0.50 0.10 0.00 0.00 0.00 0.00 0.00\n10.25%\nor more but\nless than\n10.5% 1.60 1.40 1.20 1.00 0.80 0.40 0.00 0.00 0.00 0.00 0.00 0.00\n10.5%\nor more 1.50 1.30 1.10 0.90 0.70 0.30 0.00 0.00 0.00 0.00 0.00 0.00\n (aa) (i) If a qualified employer, with a minimum of seventeen quarters\nof liability, has an account percentage which is negative on any\ncomputation date and the total wages paid by such employer in the\npreceding payroll year, is greater than or equal to eighty percent of\nthe previous three payroll year's average total wages paid by the\nemployer, then such employer's account percentage for the subsequent\nyear shall be improved by four percentage points for purposes of\ndetermining the employer's rate of contribution. However, in no event\nshall the resulting rate of contribution after such adjustment be less\nthan 6.1 percent. Such adjustment to the employer's account percentage\nshall be applicable only to the employer's current rate of contribution\nand the application of such adjustment shall be redetermined annually.\n (ii) The terms "qualified employer", "employer's account percentage",\n"computation date", "wages", "payroll year" and "rate of contribution"\nshall have the meaning prescribed pursuant to article eighteen of this\nchapter.\n (b) Penalty for failure to file required returns. (1) In the case of a\nfailure by an employer to file a quarterly combined withholding wage\nreporting and unemployment insurance return required by paragraph four\nof subsection (a) of section six hundred seventy-four of the tax law,\nthere shall be imposed a penalty of five percent of the amount of\ncontributions required to be shown on such return (including the amount\nof any assessment or modification made pursuant to this section) if the\nfailure is for not more than one month with an additional five percent\npenalty for each additional month or fraction thereof during which such\nfailure continues, not exceeding twenty-five percent in the aggregate.\n (2) The penalty provided for failure to file a return under this\nparagraph shall not be less than one hundred dollars for each\noccurrence.\n (3) For purposes of this paragraph, the amount of contributions\nrequired to be shown on such return shall be reduced by the amount of\nany part of the contributions due which is paid on or before the date\nthe return is required to be filed and by the amount of any credit to\nthe contributions due which may be claimed upon such return.\n (4) For other penalties relating to failure to file the quarterly\ncombined withholding, wage reporting and unemployment insurance return,\nsee paragraph one of subsection (v) of section six hundred eighty-five\nof the tax law.\n (5) The penalties imposed and collected pursuant to this paragraph\nshall be credited to the unemployment insurance control fund established\npursuant to section five hundred fifty-two-b of this article.\n (c) The rate for any employer who has not qualified under the\nprovisions of paragraph (c) of subdivision one of this section solely\nbecause he has not been liable for contributions during at least the\nfive completed calendar quarters ending on the computation date, or\nbecause he has not paid any remuneration in the payroll year preceding\nthe computation date, shall be equal to the rate which applies pursuant\nto paragraph (a) of this subdivision to an employer who has a positive\naccount percentage of less than one percentum, except that the rate for\nsuch employer shall in no event exceed three and four-tenths per centum.\n (d) The rates established in accordance with the provisions of this\nsubdivision shall apply with respect to wages paid in the four\nconsecutive calendar quarters immediately following the computation\ndate.\n 3. Joint accounts. Any two or more qualified employers engaged in the\nsame or a related trade, occupation, profession or enterprise, or having\na common financial interest may apply to the commissioner to establish a\njoint account or to merge their several individual accounts in a joint\naccount. The commissioner shall prescribe rules and regulations for the\nestablishment, maintenance and dissolution of joint accounts. A joint\naccount shall be maintained as if it constituted a single employer's\naccount. Rules established by the commissioner pursuant to the\nprovisions of this subdivision shall be promulgated only after notice\nand public hearing.\n 4. Transfers of accounts. (a) Where an employer subsequent to July\nfirst, nineteen hundred fifty-one, transfers his or its organization,\ntrade or business in whole or in part, the transferee shall take over\nand continue the employer's account, including its balance and all other\naspects of its experience under this article, in proportion to the\npayroll or employees assignable to the transferred organization, trade\nor business determined for the purpose of this article by the\ncommissioner. The account taken over by the transferee shall remain\nchargeable with respect to benefits based on employment in the\ntransferred organization, trade or business, and all such employment\nshall be deemed employment performed for the transferee.\n (b) The rate of contribution applicable to the accounts of the\ntransferee and the transferring employer with respect to the calendar\nyear in which the transfer occurred shall be respectively determined or\nredetermined as of the computation date in the preceding calendar year,\nand such rates shall apply from the date of the transfer to the end of\nthe calendar year in which the transfer occurred. The rate of\ncontribution applicable to the accounts of the transferee and the\ntransferring employer with respect to the calendar year following the\ncalendar year in which the transfer occurred shall be respectively\ndetermined or redetermined as of the computation date in the same\ncalendar year. The commissioner shall allocate to the transferee's\naccount for each period in question the proportion of the transferring\nemployer's payroll, which the commissioner determines to be properly\nassignable to the organization, trade or business transferred.\n (c) No transfer shall be deemed to have occurred if the commissioner\non his own motion or on application of any interested party finds that\nall of the following conditions exist:\n (1) the transferee has not assumed any of the transferring employer's\nobligations, and\n (2) the transferee has not acquired any of the transferring employer's\ngood will, and\n (3) the transferee has not continued or resumed the business of the\ntransferring employer either in the same establishment or elsewhere, and\n (4) the transferee has not employed substantially the same employees\nas those the transferring employer had employed in connection with the\norganization, trade, business, or part thereof transferred.\n (d) No transfer shall be deemed to have occurred unless either the\ntransferring employer or the transferee has given notice of the transfer\nto the commissioner prior to the termination of the calendar year\nfollowing the calendar year in which the transfer occurred.\n 5. Interstate transfer of experience. An employer who transfers all or\na segregable part of his operations from another state to this state\nshall be deemed to be a qualified employer within the meaning of this\nsection as of the computation date next following the transfer,\nprovided:\n (a) that he has paid wages subject to the federal unemployment tax act\nfor eighteen consecutive completed calendar quarters immediately\npreceding the computation date;\n (b) that he notifies the commissioner of the transfer of operations\nprior to the computation date;\n (c) that he certifies to the commissioner all information with respect\nto the transferred operations which the commissioner determines to be\nnecessary; and\n (d) that he certifies to the commissioner at such times as the\ncommissioner prescribes all information which the commissioner\ndetermines to be necessary with respect to benefits paid subsequent to\nthe transfer and prior to each computation date on the basis of wages\npaid in such other state.\n Wages, remuneration, contributions and benefits resulting in\nexperience rating charges in connection with the transferred operations\nshall be deemed to have been paid in this state for the purposes of this\nsection.\n In computing such employer's balance applicable to the transferred\noperations, the commissioner shall consider only the fourteen most\nrecently elapsed calendar quarters prior to the computation date. Any\nbalance set up under this subdivision shall be debited to the general\naccount; and benefits subsequently paid based on wages paid in such\nother state shall be charged to the employer's account and credited to\nthe general account.\n 6. Corrections and modifications. Corrections or modifications of an\nemployer's payroll, experience rating charges, or any other pertinent\nfactor shall not be taken into account for the purpose of a\ndetermination or redetermination of the employer's contribution rate,\nunless such corrections or modifications were established on or before\nthe computation date; except that they shall be taken into account\nwhenever established if the employer filed false returns with intent to\ndefraud or, with respect to payroll, failed to file returns prior to the\ncomputation date such that an amount of contributions due from such\nemployer and/or an amount of wages paid by such employer was required to\nbe determined by the commissioner pursuant to section five hundred\nseventy-one of this article and such corrections or modifications result\nin a rate higher than the contribution rate determined by the\ncommissioner or, with respect to experience rating charges, if they\nresult from a referee, appeal board, or court decision.\n 7. Certain transfers. Notwithstanding any other provision of law, the\nfollowing shall apply regarding assignment of rates and transfers of\nexperience:\n (a)(1) If an employer transfers its organization, trade or business,\nor a portion thereof, to another employer and, at the time of the\ntransfer, there is at least ten percent common ownership, management or\ncontrol of the two employers, then the unemployment experience\nattributable to the transferred organization, trade or business shall be\ntransferred to the employer to whom such organization, trade or business\nis so transferred. In addition to the provisions of this subdivision,\nthe transfer provisions of paragraphs (a), (b) and (d) of subdivision\nfour of this section shall apply to such transfers. For purposes of this\nsubdivision "organization, trade or business" shall include the\nemployer's workforce.\n (2) If, following a transfer of experience under subparagraph one of\nthis paragraph, the commissioner determines that a substantial purpose\nof the transfer of the organization, trade or business was to obtain a\nreduced liability for contributions, then the experience rating accounts\nof the employers involved shall be combined into a single account and a\nsingle rate shall be assigned to such account.\n (b) Whenever a person is not an employer liable for contributions\nunder this article at the time it acquires the organization, trade or\nbusiness of an employer, the unemployment experience of the acquired\nbusiness shall not be transferred to such person if the commissioner\nfinds that such person acquired the business solely or primarily for the\npurpose of obtaining a lower rate of contributions. Instead, such person\nshall be assigned a rate in accordance with paragraph (c) of subdivision\ntwo of this section. In determining whether the organization, trade or\nbusiness was acquired solely or primarily for the purpose of obtaining a\nlower rate of contributions, the commissioner shall evaluate factors\nthat include, but are not limited to the following:\n (1) the cost of acquiring the organization, trade or business;\n (2) whether the person continued the business enterprise of the\nacquired business;\n (3) how long such business enterprise was continued; or\n (4) whether a substantial number of new employees were hired for\nperformance of duties unrelated to the business activity conducted prior\nto acquisition.\n (c)(1) If a person knowingly violates or attempts to violate\nparagraphs (a) or (b) of this subdivision, then such person shall be\nliable for the greater penalty of ten percent of such person's total\ntaxable wages in the last completed payroll year or ten thousand\ndollars. Any such penalty shall be deposited in the control fund\nestablished under section five hundred fifty-two-b of this article.\n (2) If a person knowingly advises another person to violate or attempt\nto violate paragraph (a) or (b) of this subdivision, then such advisor\nshall be subject to a civil penalty of ten thousand dollars. Any such\npenalty shall be deposited in the control fund established under section\nfive hundred fifty-two-b of this article.\n (3) For purposes of this subdivision, the term "knowingly" means\nhaving actual knowledge of or acting with deliberate ignorance or\nreckless disregard for the prohibition involved.\n (4) For purposes of this subdivision, the term "violates or attempts\nto violate" includes, but is not limited to, intent to evade,\nmisrepresentation or wilful nondisclosure.\n (5) In addition to the penalties imposed by subparagraphs one and two\nof this paragraph, any violation of this subdivision shall be a class E\nfelony and is punishable by a term of imprisonment as prescribed in\nsection 70.00 of the penal law.\n (d) The commissioner shall establish procedures to identify the\ntransfer or acquisition of a business for purposes of this subdivision.\n (e) For purposes of this subdivision the term "person" has the meaning\ngiven such term by section 7701 (a)(1) of the Internal Revenue Code of\n1986, and shall also include an employer as defined in this article.\n