Article 8 - Assessments

California Unemployment Insurance Code — §§ 1126-1145

Sections (21)

Amended by Stats. 2014, Ch. 28, Sec. 93. (SB 854) Effective June 20, 2014.

(a)If any employing unit fails to make a return or report as required under this division, the director shall make an estimate based upon any information in his or her possession or that may come into his or her possession of the amount of wages paid for employment in the period or periods for which no return or report was filed and upon the basis of the estimate shall compute and assess the amounts of employer and worker contributions payable by the employing unit, adding thereto a penalty of 15 percent of the amount of contributions.

(b)The changes made to this section by the act adding this subdivision shall apply on and after July 1, 2014.

§ 1126.1

Added by Stats. 1994, Ch. 1117, Sec. 6. Effective January 1, 1995.

(a)If any employing unit fails to register with the department as required under Section 1086, and the failure is due to intentional disregard or intent to evade this division or authorized regulations, a penalty of one hundred dollars ($100) per nonreported employee shall be added to an assessment issued in accordance with Section 1126.

(b)For purposes of this section, the number of nonreported employees shall be defined as the highest number of employees determined by the

department to have been engaged by the employer during any single calendar quarter included in the assessment under Section 1126.

§ 1127

Amended by Stats. 2014, Ch. 28, Sec. 94. (SB 854) Effective June 20, 2014.

(a)If the director is not satisfied with any return or report made by any employing unit of the amount of employer or worker contributions, he or she may compute the amount required to be paid upon the basis of facts contained in the return or reports or may make an estimate upon the basis of any information in his or her possession or that may come into his or her possession and make an assessment of the amount of the deficiency. If any part of the deficiency is due to negligence or intentional disregard of this division or authorized regulations, a penalty of 15 percent of the amount of the deficiency shall be added to the assessment.

(b)The changes made to this section by the act

adding this subdivision shall apply on and after July 1, 2014.

§ 1127.5

Added by Stats. 1986, Ch. 793, Sec. 2. Effective September 15, 1986.

(a)If the director determines that an individual or entity that is reporting employee wages pursuant to Section 1088 or other applicable sections is not the correct employer of the employees whose wages are reported, the director shall determine the correct employer and, subject to this section, shall apply the provisions of this code to the correct employer.

(b)Upon a determination made under subdivision (a), the director shall give notice of the determination pursuant to Section 1206 to both of the following:

(1)To the individual or entity reporting employee wages of the determination that the individual or entity is not the correct employer of the reported employees.

(2)To the individual or entity determined to be the correct employer of those reported employees.

The notice shall contain a statement of the facts and circumstances upon which the determination was based. An individual or entity so noticed shall have the right to petition for review of the determination within 30 days of the notice, as provided in Section 1222.

(c)During the pendency of a petition for review pursuant to subdivision (b), the individual or entity responsible for reporting employee wages pursuant to Section 1088 or other applicable sections shall be determined as follows:

(1)When an individual or entity that has reported employee wages appeals a director’s determination that it is not the correct employer of the employees whose wages were reported, that individual or entity shall continue to so report employee wages, provided the employees in question are still on its payroll, until a decision on its appeal is final, whether or not the individual or entity determined to be the correct employer by the director appeals that determination.

(2)When the individual or entity determined by the director to be the correct employer appeals that determination, but the individual or entity determined not to be the correct employer does not appeal the director’s determination, then the individual or entity determined to be the correct employer by the director shall report employee wages from the date it received notification pursuant to subdivision (b), and,

provided the employees in question are still on its payroll, shall continue to do so at least until a decision on its appeal is final.

(d)When a director’s determination that an individual or entity is the correct employer of employees whose wages have been reported by another individual becomes final:

(1)The individual or entity so determined to be the correct employer may be assessed for any underpayment of employer contributions pursuant to Article 8 (commencing with Section 1126) of Chapter 4 of Part 1 of Division 1. No assessment shall be issued for any period prior to the effective date of this section based on which individual or entity is the correct employer, unless the correct employer committed fraud in violation of this part.

(2)The individual or entity which had reported employee wages prior to the

finality of the director’s determination of the correct employer of the employees whose wages were so reported may file a claim for refund for any overpayment of employer contributions pursuant to Section 1178. No claim for refund may be filed for any period prior to the effective date of this section based on which individual or entity is the correct employer unless the department has issued an assessment based on fraud pursuant to paragraph (1).

§ 1128

Amended by Stats. 2002, Ch. 29, Sec. 11. Effective January 1, 2003.

(a)If the failure of the employing unit to file a return or report within the time required by this division and authorized regulations or if any part of the deficiency for which an assessment is made is due to fraud or an intent to evade this division or authorized regulations, a penalty of 50 percent of the amount of contributions assessed shall be added to the assessment. This penalty is in addition to the penalties provided pursuant to Sections 1126 and 1127.

(b)An

additional penalty of 50 percent of the amount of contributions assessed shall be added to any assessment that includes a penalty under subdivision (a), if the employer paid wages and failed to provide information returns as required under Section 13050 of this code or Section 6041A of the Internal Revenue Code. This penalty shall be in addition to any penalties under Section 1126 or 1127.

§ 1128.1

Amended by Stats. 2015, Ch. 303, Sec. 517. (AB 731) Effective January 1, 2016.

(a)If the director finds that an individual or business entity has exchanged money on behalf of an employer and the employer used the cash proceeds from the exchange to conceal the payment of wages with an intent to evade a provision of this code, the director shall assess a penalty against the individual or business entity in an amount equal to 100 percent of any assessed contributions that were based on the concealed wages. An employing unit subject to a penalty under Section 1128 shall not be assessed a penalty under this section for the same violation.

(b)For purposes of this section, “business entity” means a partnership, corporation, association, limited liability company,

or Indian tribe (as described by Section 3306(u) of Title 26 of the United States Code).

(c)The penalty applies only when there is evidence that the individual or business entity who exchanged money knew that the employer intended to use the cash proceeds from the exchange to conceal the payment of wages and thereby avoid the payment of contributions or taxes required by this code.

§ 1129

Amended by Stats. 1993, Ch. 31, Sec. 66. Effective June 16, 1993. Operative January 1, 1994, by Sec. 83 of Ch. 31.

The amount of each assessment shall bear interest at the adjusted annual rate and by the method established pursuant to Section 19521 of the Revenue and Taxation Code from and after the last day of the month following the close of the calendar quarter, or from and after the 15th day of the month following the close of the calendar month, for which the contributions should have been returned until the date of payment.

§ 1130

Enacted by Stats. 1953, Ch. 308.

One or more assessments may be made for the amount due for one or for more than one period and overpayments may be offset against underpayments.

§ 1131

Amended by Stats. 1979, Ch. 1082.

The director shall give to the employing unit against whom an assessment is made a written notice of the assessment pursuant to Section 1206.

§ 1132

Amended by Stats. 1994, Ch. 1049, Sec. 17. Effective January 1, 1995.

Except in the case of failure without good cause to file a return or report, fraud or intent to evade any provision of this division or authorized regulations, every notice of assessment shall be made within three years after the last day of the month following the close of the calendar quarter during which the contribution liability included in the assessment accrued or within three years after the deficient return or report is filed, or was due, whichever period expires the later. An employing unit may waive this limitation period or may consent to its

extension.

In case of failure without good cause to file a return or report, every notice of assessment shall be made within eight years after the last day of the month following the close of the calendar quarter during which the contribution liability included in the assessment accrued. An employing unit may waive this limitation period or may consent to its extension.

§ 1135

Amended by Stats. 2014, Ch. 28, Sec. 95. (SB 854) Effective June 20, 2014.

(a)Assessments under this article become delinquent if not paid on or before the date they become final pursuant to Sections 1036, 1221, 1222, and 1224. There shall be added to the amount of each delinquent assessment a penalty of 15 percent of the amount thereof exclusive of interest and penalties.

(b)The changes made to this section by the act adding this subdivision shall apply on and after July 1, 2014.

§ 1136

Amended by Stats. 1984, Ch. 537, Sec. 15.

If the director finds that an assessment or portion thereof has been erroneously made, he may cancel the assessment or portion thereof in the following cases:

(a)Where no petition for reassessment has been filed.

(b)Where a petition for reassessment is filed, if the cancellation is made prior to the mailing of a decision of the administrative law judge.

(c)Where a petition for reassessment has been filed and an order or decision of an administrative law judge

or of the appeals board has been issued on any grounds not on the merits, if the cancellation is approved by the appeals board.

§ 1137

Amended by Stats. 1986, Ch. 89, Sec. 1. Effective May 13, 1986.

(a)If the director finds, in accordance with Section 1137.1, that the collection of any contributions will be jeopardized by delay the director shall thereupon make an assessment of those contributions, served pursuant to Section 1206, noting upon the assessment that it is a jeopardy assessment levied under this section and the facts upon which the director finds that collection of contributions will be jeopardized by delay. The amount of the assessment shall be immediately delinquent, whether or not the time otherwise allowed by law or authorized regulations has expired. When applicable, the penalties provided in Sections 1126,

1127, and 1128, and interest under Section 1129, shall attach to the amount of the contributions specified in the jeopardy assessment. Penalties under Section 1135 shall apply if payment is not made, or security for payment is not provided, within 30 days of service of a jeopardy assessment.

(b)In levying the assessment, the director may demand a deposit of such security as the director deems necessary to ensure compliance with this division, including additional security from time to time, but not more frequently than monthly, in the amount of accumulating interest. The deposit of sufficient security to ensure compliance shall stay other collection action by the director while the assessment is under review. The deposit of the sufficient security shall not be a condition for the exercise of the review and appeal rights of the employer pursuant to Sections 1221, 1222, 1223, and 1224. The filing of a petition for reassessment pursuant to

Section 1221 shall not stay collection action by the director while the assessment is under review, but shall stay the sale of all property other than perishable goods seized by the director pursuant to the collection action until a final decision from a preliminary hearing pursuant to subdivision (b) of Section 1221 is issued by the administrative law judge or the board.

§ 1137.1

Amended by Stats. 1997, Ch. 810, Sec. 2. Effective January 1, 1998.

A jeopardy assessment may be made only upon a finding by the director, based upon probable cause, that any of the following conditions are met:

(a)The employing unit is insolvent.

(b)The employing unit has transferred, or is about to transfer, assets for less than fair market value, and by so doing has rendered, or is likely to render, itself insolvent.

(c)The

employing unit has been dissolved.

(d)Any person liable for the employing unit’s contribution, or any owner, officer, director, partner, or other person having charge of the affairs of the employing unit has departed or is about to depart the State of California and that the departure is likely to deprive the director of a source of payment of the employing unit’s contribution.

(e)Any person referred to in subdivision (d), or the employing unit, is secreting assets or is moving, placing, or depositing assets outside of the state for the purpose of interfering with the orderly collection of any contribution. The moving, placing, or depositing of assets outside of the state which constitutes a regular business practice and which does not in any way deplete the assets of the employing unit shall not be deemed to be interfering with the orderly collection of any contribution under

this subdivision.

(f)The assessment to be issued against the employing unit or an individual includes a penalty under subdivision (a) of Section 1128 or Section 1128.1.

§ 1141

Added by Stats. 1970, Ch. 1216.

When an assessment for worker contributions that is made pursuant to the provisions of this article becomes final against a farm labor contractor, as defined in Section 1682 of the Labor Code, which is an employing unit, as defined in Section 135 of this code, or such farm labor contractor is otherwise delinquent in the payment of worker contributions, the department shall notify the Labor Commissioner, in writing, of the amount of the delinquency of such employing unit, and shall further notify the Labor Commissioner, in writing, when such delinquency is paid. The notice of assessment and the amount of any delinquency shall be admissible in evidence in any action or special

proceeding arising out of the provisions of Chapter 3 (commencing with Section 1682) of Part 6 of Division 2 of the Labor Code.

§ 1141.1

Amended by Stats. 2015, Ch. 303, Sec. 518. (AB 731) Effective January 1, 2016.

The director shall notify the United States Internal Revenue Service and the United States Department of Labor of the failure of an Indian tribe (as described by Section 3306(u) of Title 26 of the United States Code) to pay within 90 days of the final date of an assessment any amounts assessed pursuant to the provisions of this article. If the assessment is subsequently paid by the Indian tribe, the director shall notify the United States Internal Revenue Service and the United States Department of Labor of the satisfaction of the liability.

§ 1142

Amended by Stats. 2012, Ch. 783, Sec. 8. (AB 1845) Effective January 1, 2013.

(a)If the director finds that any employer or any employee, officer, or agent of any employer, in submitting facts concerning the termination of a claimant’s employment pursuant to Section 1030, 1327, 3654, 3701, 4654, or 4701, willfully makes a false statement or representation or willfully fails to report a material fact concerning that termination, the director shall assess a penalty of an amount not

less than 2 nor more than 10 times the weekly benefit amount of that claimant. The director shall assess this penalty in the following manner:

(1)If the director finds that the employer was at fault for willfully making a false statement or representation or willfully failing to report a material fact concerning that termination, the director shall assess the penalty against the employer.

(2)If the director finds that the agent of the employer was at fault for willfully making a false statement or representation or willfully failing to report a material fact concerning that termination, the director shall assess the penalty against the agent of the employer.

(3)If the director finds that the employer and the agent of the employer were both at fault for willfully making a false statement or representation or

willfully failing to report a material fact concerning that termination, the director shall assess the penalty against the employer and also shall assess another penalty against the agent of the employer.

(b)If the director finds that any employer or any employee, officer, or agent of any employer, in submitting a written statement concerning the reasonable assurance, as defined in subdivision (g) of Section 1253.3, of a claimant’s reemployment, as required by subdivisions (b), (c), and (i) of Section 1253.3, willfully makes a false statement or representation or willfully fails to report a material fact concerning the reasonable assurance of that reemployment, the director shall assess a penalty of an amount not less than 2 nor more than 10 times the weekly benefit amount of that claimant. The director shall assess this penalty in the following manner:

(1)If the director finds

that the employer was at fault for willfully making a false statement or representation or willfully failing to report a material fact concerning the reasonable assurance of that reemployment, the director shall assess the penalty against the employer.

(2)If the director finds that the agent of the employer was at fault for willfully making a false statement or representation or willfully failing to report a material fact concerning the reasonable assurance of that reemployment, the director shall assess the penalty against the agent of the employer.

(3)If the director finds that the employer and the agent of the employer were both at fault for willfully making a false statement or representation or willfully failing to report a material fact concerning the reasonable assurance of that reemployment, the director shall assess the penalty against the employer and also shall assess

another penalty against the agent of the employer.

(c)(1) This article, Article 9 (commencing with Section 1176) of this chapter with respect to refunds, and Chapter 7 (commencing with Section 1701) of this part with respect to collections shall apply to the assessments provided by this section. Penalties collected under this section shall be deposited in the contingent fund.

(2)Notwithstanding Section 1586, additional penalties that are assessed against an agent of the employer and collected pursuant to paragraph (3) of subdivision (a) and paragraph (3) of subdivision (b) shall be available for the purposes specified in Section 1586 upon appropriation by the Legislature for those purposes.

§ 1142.1

Added by Stats. 2006, Ch. 190, Sec. 1. Effective January 1, 2007.

(a)If the director finds that any employer or any employee, officer, or agent of any employer, in submitting facts concerning the termination of a claimant’s employment, where the claimant was performing services for an educational institution, as described in Section 1253.3, willfully makes a false statement or representation or willfully fails to report a material fact regarding any week during which the services were performed, as provided in Section 1253.3, or any time granted to the claimant for professional development during his or

her employment with that employer, the director shall assess a penalty against the employer of that claimant in an amount not less than two, nor more than 10, times the weekly benefit amount of that claimant.

(b)This article, Article 9 (commencing with Section 1176) of this chapter, with respect to refunds, and Chapter 7 (commencing with Section 1701) of this part, with respect to collections, shall apply to the assessments provided by this section. Penalties collected under this section shall be deposited in the Employment Development Department Contingent Fund.

§ 1143

Amended by Stats. 2003, Ch. 797, Sec. 5. Effective January 1, 2004.

If the director finds that any individual falsely certifies the medical condition of any person in order to obtain disability insurance benefits, including family temporary disability insurance benefits, with the intent to defraud, whether for the maker or for any other person, the director shall assess a penalty against the individual in the amount of 25 percent of the benefits paid as a result of the false certification. The provisions of this article, the provisions of Article 9 (commencing with Section 1176) with respect to refunds, and the provisions of

Chapter 7 (commencing with Section 1701) with respect to collections shall apply to the assessments provided by this section. Penalties collected under this section shall be deposited in the contingent fund.

§ 1144

Added by Stats. 1994, Ch. 1050, Sec. 2. Effective January 1, 1995.

(a)Any employer who induces, solicits, or coerces an employee to file a false or fraudulent claim for benefits shall be assessed a penalty in an amount equal to 100 percent of the liability established under Sections 1375 and 1375.1 against the employee. Amounts collected under this section shall be deposited in the fund from which the overpayment was made and as prescribed in Section 1375.1, in the following order of priority:

(1)First to the fund from which the overpayment was

made, up to the total amount of the benefit overpayment liability assessed against the employee under Section 1375.

(2)Second to the Benefit Audit Fund, up to the total amount assessed against the employee under Section 1375.1.

(b)The reserve account of any employer who is assessed under this section shall not be relieved of the charges for benefits related to the fraudulent claim.

§ 1145

Amended by Stats. 2017, Ch. 117, Sec. 7. (AB 1695) Effective January 1, 2018.

(a)If the director finds that a person or business entity knowingly advises another person or business entity to violate any provision of this chapter, the director may assess the greater of:

(1)A penalty of five thousand dollars ($5,000).

(2)Ten percent of the combined amount of any resulting underreporting of contribution, penalties, and interest required by law.

(b)For purposes of this section, “business entity” means a partnership,

corporation, association, limited liability company, or Indian tribe, as described in Section 3306(u) of Title 26 of the United States Code, or any other legal entity.