Cook, Robert N.

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The Bodies Administering Unemployment Compensation Laws

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THE BODIES ADMINISTERING UNEMPLOYMENTCOMPENSATION LAWSROBERT N. CooK*The organization of the governmental bodies charged by the state unemploymentcompensation acts' with the administration of their respective systems is too recentto permit of extended analysis. In the table which accompanies this article the struc-ture of the principal federal and state administrative bodies is outlined. This tabledoes not embrace the public employment service which is provided in every state northe additional machinery for the settlement of benefit claims. These administrativeagencies and their functions are discussed elsewhere in this symposium.2 The powersand dudes of the bodies considered herein are set forth in the several statutes in verygeneral terms. The following summary indicates the principal provisions.i. Rule-Making Power. In every state, the commission is granted power to makerules and regulations. In two states, a distinction is drawn between rules relating toadministration,3 and those "interpreting or applying" the act.4 Rules of the lattertype may be adopted only after a public hearing before the commission, followingpublished notice or after discussion with the state-wide advisory council, and becomeeffective upon filing with the secretary of state. In three jurisdictions,5 there is onlythe requirement of notice in advance of the effective date of the regulation. Theother states6 have no express requirement of publication prior to the effective date ofthe rules, but usually require their publication. In two of these,7 regulations are* A.B., 1933, Bucknell University. Member of the third year class in the Duke University School ofLaw. Member of the Editorial Board of the Duke Bar Association Journal.'Alabama, Laws 1935, Sen. B. No. 395; California, Stat. 1935, C. 352; District of Columbia, Public,No. 386, 7 4 th Cong., ist Sess. (1935); Massachusetts, GEN. LAws, c. I5iA (Laws 1935, c. 479); NewHampshire, Laws 1935, c. 99, as amended by c. i42; New York, N. Y. Consol. Laws, art. 18 c. 31,§§500-531 (Laws 1935, C. 468); Oregon, Laws 1935, Spec. Sess., H. B. No. 71; Utah, Laws 1935, c. 38;Washington, Laws 1935, c. 145; Wisconsin, Wis. STAT. (1933) c. xo8, as amended by Laws 1935, c. 192,272, 446; North Carolina, Laws 1935, c. 492 (enabling act which has not been utilized).(Subsequent citations of these acts will be by the pertinent section or sections only. The fact that inthe succeeding discussion there is no reference to a particular section of a state act does not necessarily meanthat the commission of that state does not have the power to which the reference relates since the samepower may be exercised under the more general grants.)'See Stead, The Rdle of the Public Employment Service in the Unemployment Compensation Program,infra, p. oo; Dodd, Administering Unemployment Compensation Benefit Claims, infra, p. 07.'Ala. §io (a); Wash. §si (s). 'Ala. §io (b); Wash. §1s (2).5 Calif. §9o (a)-(b) (30 days); Dist. of Col. §14 (b) (5 days); Wis. §X08.14 (2) (lo days).'Mass. §§9 J-4 o; N. H. §§41-42; N. Y. §518; Ore. §§i9 (a), 20 (a); Utah, §27 (a), Rav. STAT.(1933) 42-1-95. ' Mass. §9 J; N. H. §41.LAW AND CONnmpoRARY PROBLEMSNUMBER OF QUALIFICATIONS ANDJURISDICTION* NAuE or BODY MEMBERS GROUPS REPRESENTED RESmsTIrONSUNITED STATES Social Security 3 [Ibid.) Must not engage in any other(Social Security Act, Board business, vocation, or employ-Pub.. No. 271. 74th [tit. VII, § 701] ment; not more than 2 mem-Cong., Ist Seas., bers of same political party1935) [lbid.lALABAMA Unemployment 3 If 9 (a)] Must not be "officer or com-(Laws 1935, Sen. B. Compensation Quorum: 2 mittee member of any politicalNo. 395) Commission 1§ 9 (d)] party organization" 1§ 9 (a)][§ 9 (a)lState-Wide Not less than 9 Equal number represent em- Must be fairly representativeAdvisory I 10 (e)] ployees, employers, public of Group I§ 10 (e)]Council If 10 (e)l RI 10 (e)Local Advisory Not specified Equal number represent em- Must be fairly representativeCouncils ployers, employers, public of groupI 10 (e) If O (e) If 10 (e)jCALIFORNIA Unemployment 5 [§ 78] 2 represent labor 1§ 79,80];(Stat. 1935, c. 352) Reserves 1, the state and public If 81];Commission 1, large employer If 821; 1,If 751 independent merchants andsmall employers If 83]DIsTRCT or District Unem- 5 I§ 16 (a)] 3 Comm'rs of District, exCOLUmsnrA ployment Com- officio; 1 representative, em-(Pub. No. 386, 74th pensation Board ployer; 1 representative, em-Cong.. 1st Sess.,1935) If 16 (a)] ployees I§ 16 (a)]MASSACUSETrrS Unemployment 3 I§ 9 I (a)] 1 represents employers; 1, Not more than 2 of same polit-(Laws 1935, c. 479, Compensation Quorum: 2 employees; 1, the public ical party; must not serve oncreating GEN. LAI-is, Commission If 9 I (c)] If 91 (a)] any political party committee;c. ISlA) ( 9 1 (a)] must he fairly representative ofgroup If 9 1 (a)lState Advisory 9 [§ 9 N (a)] 3 represent employers; 3, em- Not more than 5 ofsame party;Council ployees; 3, the public must be fairly representative of1§ 9 N (a)] I 9 N (a)l group 1§ 9 N (a)]NEw HAmPs-iRE Commissioner of I(Laws 1935, c. 99) Labor I§ 401 IPuB. LAws_a174, § 11NEw YORK Industrial Coin- 1 [Cosesor. LAws(Laws 1935, c.r468, missioner c. 32 § 101adding CONSOL. If 518 (1)1LAws, c. 31, art. 18) State Advisory 9 [§ 518 (4)] 3 represent employers; 3, er- Must be fairly representativeCouncil ployces; 3 the puhlic of group_ 518 (4)] If 518 (4)1 If 518 (4)1OREGON Unemployment 3 I§ 18] [ConE Members, Ind. Accident Not more than 2 from one polit-(Laws 1935, Spec. Compensation 49-18021 Comm'n, ex offcio, [§ 181 ical party. [Ibid.;] must hold noSes., R. B. No. 71) Commission Quorum: 2 of whom 1 represents em- other office of profit or in anyR. 181 (CoDE 49-18051 ployers; 1, employees; I, the political partypublic ICoDE, 49-18021 lId. 49-1t031UTAH Industrial Con- 3 IREv. STAT. Not more than 2 from same(Laws 1935, c. 38) mission 42-1-11 Quorum: political party[§ 27 (a)] 2 lVd. 42-1-61 lId. 42-1-1]Advisory Not specified Equal number represent em-Council ployers, employees, and the1§ 27 (b)] public I§ 27 (b))WA IsNoTo Unemployment 3 [§ 10 (1)] Must not engage in any other(Laws 1935, c. 145) Compensation Quorum: 2 business, vocation, or employ-Commission If 10 (3)1 ment or beofficer orcommitteeIf 10 (I)] member of any political partyI 10 (1)Statewide Ad- Not specified Equal number represent em-visory Council ployers, employees, and theIf 11(5)] public [§ 11 (5)1Local Advisory Not specified Equal number represent em-Councils ployers, employees, and theRI 11 (5)) public If 11 (5)]WIscoSIN Industrial 3 [§101.02](STAT. (1933) c. 108, Commission Quorum: 2as amended by Laws [§ 108.14 (1)] I§ 101.0311935, c. 192, 272, Advisory Em- At least 3 One or more representativesployment Coin- [§ 108.14 (5)] of employers, em loyees, andmittees (for local public I§ 108.14 5)]1districts, indus-tries, or state)R§ 108.14 (5)1Tse citations in brackets refer to the unemployment compensation acts cited in the left-hand column except where referenceto statutes in the state codes is specified.THE BODIES ADMINISTERING UNEMPLOYMENT COMIPENSATION LAWS 97MODE OF APpOINTuENT TERM COMPENSATION REMOVALBy President, with advice and con- 6 yrs. Initial terms: 2, 4, $190,000 per yr. By President at his pleasure [Cf.sent of Senate (Chairman desig- 6 rs. [Ibid.] Meyers v. U. S., 272 U. S. 52nated by President) V9bi.] (1926); Rathbun v. U. S., 295[Ibid.] U. S. 602 (1935)1By Governor (Chairman desig- 6 yrs. Initial terms- 2, 4, Chairman, $3,600 per yr. By Governor "at his pleasure"naby Governor)imn g  rs.Int te .2,4 Assoc. Members, $10 per [Cone § 776]noted by Governor) 6 yrA..[§ 9(a)] [§ 9 (a)] day [§ 9 (b)]By Governor Not specified Traveling expenses See above§ 10 (e) [§ 10 (e))By Governor Not specified Traveling expenses See above[§ 10 (e)] [§ 10 (e)]By Governor J§ 75) (Chairman 4 yrs. [§ 77) Initial terms: $10 per day (not more By Governor at his pleasureelected by Comm'n) 2 Commrs, I yr; others, than $1200 per yr.) [PoLIT. CODE § 3491[§ 76) 2, 3, 4 yrs. [§§ 84-87] Traveling expenses [§ 76]By Comm'm of District (Chair- 3 yrs. Initial term of em- Comm'rs of Dist. receive Comm'rs of Dist.. by Presidentman, Comm'rs of District, also ployee representative, 2 no extra compensation; [see cases, supra]; other members,Chairman of Board) yrs. [§ 16 (a)] other two members, $10 by Comm'rs[§ 16 (a)) per day R 16 (c)] [Con.e tit. 20. § 281By Governor, with advice and 6 yrs. Initial terms: 2, 4, $6,000 per yr. Chairman, By Governor for cause, withconsent of Council (Representa- 6 yrs. $6,500 per yr. advice and consent of Council.tive of public, chairman) 1§ 9 1 (a)] 1§ 9 I (b)] [LAws ANm. c. 30, § 9][§ 9 1 (a)]By Governor, with advice and 6 yrs. Initial terms: 2, 4, Actual traveling and in- See aboveconsent of Council 6 yrs. cidental expenses[ 9 N (a)] [§ 9N(a)] § 9 N (a)]_ _ _ _ _ _By Governor, with advice and 3 yrs. $3000 per yr. and ex- For cause by Governor, with ad-consent of Council [id. § 2] penses vice and consent of Council[Pun. LAws c. 174. § 11 F__________ Ied. §!4) [Id. § 21By Governor, with advice and Terminates with term of $12,000 per yr. and By Governor when in public in-consent of Senate appointing Governor expenses terest[Ibid.) [Id. 8171 [id. § 16; c. 56a, § 111By Governor 6 yrs. Initial terms: 2, 4, Actual traveling and in- By Governor for inefficiency, neg-518 (4)] 6 yrs. cidental expenses lect of duty, malfeasance, etc.[1 518 [§ 578 (4)) [8 578 (4)]By Governor [Id. 49-1802] (Chair- 4 yrs. Present salary of $3.600 By Governor for inefficiency. neg-man elected by Comm'n for 2 [Id. 49-1802] per yr. lId. 49-1803) To lect of duty, or malfeasance incontinue without addi- office[Id. 49-1804) tional compensation [§ 18] [CoDE, 49-1803]B' Governor, with consent of 6 yrs. $4,000 per yr. By Governor for inefficiency, neg-Senate [Id. 42-1-1) Chairman [Id. 42-1-1] [Id. 42-1-5) lect of duty, malfeasance, etc.elected by Comm'n lId. 42-1-6] [Id. 42-1-31As Industrial Commission prescribes None[§ 27 (b)] [§ 27 (b)]By Governor [§ 10 (1)] (Chairman 6 yrs. Initial terms: 2, 4, $4,000 per yr. By Governor, after public hear-elected by Comm'n) 6 yrs. [§ 10 (2)] ing, for gross inefficiency, neglect1§ 10 (3)1 [§ 10 (1)] of duty, malfeasance, etc.[§ 10 (1)]B_ Unemployment Compensation Not specified Necessary expensesCommissilon [§ 11 (5)] [ 1 (5)1By Unemployment Compensation Not specified Necessary expensesCommission [§ 11 (5)] [ 11 (5)]By Governor, with advice and 6 yrs. By Governor for causeconsent of Senate [§ 101.02) [Ibid.] [§ 17.07 (3))By Industrial Commission Not specified Necessary expenses[§ 103.14 (5) [108.14 (5)1LAW AND CONTEMPORARY PROBLEMSeffective when filed with the secretary of state, and in one of these two" the approvalof the governor and council is prerequisite to filing.2. Commission Reports. The commissions are required to submit an annual ora biennial report and recommendations to the governor,9 or to the legislature, 10 orto both,- or simply to compile and publish such report.12  Provision is also madefor the publication of the reports, rules, and other matters of which the employers,employees, and public should be informed.' 8 The commissions are generallyauthorized to co~perate with the Social Security Board, to make all reports requiredby the Board, and to comply with its regulations. 143. Employers Records and Reports. Employers are required to keep records ofemployment and other related matters. Such reports are to be open to inspectionby the commission which may require that they be filed.',4. Staff Personnel. In four states' 6 appointments are to be made under civilservice regulations. In two jurisdictions,' 7 no limitations are imposed on the exerciseof the power to appoint subordinates. In the other states appointments are to beon a "merit basis,"' 8 or "nonpartisan basis" subject to approval of the governor,19or on a "nonpartisan merit basis"'20 subject to approval of the governor.21 Some actsprovide for the appointment of an executive officer who shall serve as secretary to thecommission. 21s Where the industrial commissioner or commission is authorized toadminister the act,22 an unemployment compensation division has been created underthe general appointing power.5. Funds. To facilitate compliance with Section 303 (a) (W)-(0) of the FederalSocial Security Act, the acts generally provide for two separate funds: one usuallycalled the Unemployment Compensation Fund23 to be used only for payment of8 Mass. 9 J.9 Ala. §xo (a) (annual); Cal. H33 (quarterly financial report to governor), 75, POL. Coon (1931)§354 (biennial); N. H. §40 (annual); Ore. §2o (b) (annual); Utah, REv. STAT. (1933) 42-1-95(biennial); Wash. §ii (i) (annual)."5 Dist. of Col. §§14 (c)-(d) (annual report to Congress); N. Y. CONSOL. LAws (1930) c. 32, 535(annual).'Mass. §9J (annual). 'Wis. §108.14 (6).'Ala. §zo (c); Cal. §§9o (b)-(d), 91 (e); Dist. of Col. §14 (b) (publication of rules prior to effectivedate), §17 (publication of reciprocal agreements); Mass. §4o; N. H. §42; Ore. §2o (a)-(b); Utah, Rv.STAT. (r933) 42-1-95; Wash. §11 (3); Wis. §§1o8.14 (2), 108.15 (Io)-(X2)."t Ala. §io (i); Cal. §97; Dist. of Col. §14 (e); Mass. §§42, 43 (b); N. H. §47; N. Y. §524; Ore.§Sz9 (d), 21 (c); Utah §39 (Governor to make reasonable rules to comply with Federal law); Wash.§i (9); Wis. §1u8.2o (1)."Ala. §1o (g); Cal. §9o (c) (Commission "shall keep ... records of employment"); Dist. of Col.§z8 (b) Mass. §43 (a); N. H. §45; N. Y. §521; Ore. §21 (a); Utah, §31; Wash. §xx (7); Wis.§3o8.14 (2)."0Cal. §88 (Executive officer not subject to civil service); Mass. §9 K; N. Y. §518 (1); Wis. STAT.(1933) §14.71 (). ' 7 Dist. of Col. §14 (a); Utah, §27 (a).' Ore. §19 (b). "N. H. §43 (and council).'Wash. §11 (4). m Ala. §3o (d).' Calif. §88; Dist. of Col. §16 (b); cf. Mass. §9 I (d).'N. H. §40; N. Y. 518 (1); Utah, §27 (a) (no appointments because the act is not in effect); Wis.§108.14 (3).'Ala. §§3 (a)-(b); Cal. §§i9, 20; Dist. of COl.§2; Mass. §§9, xo; N. H. §2, 3; N. Y. §514; Ore.§14; Utah §22; Wash. §§4 (1)-(2); Wis. §xo8.i6 (i).THE BODIES ADMINISTERING UNEMPLOYMENT COMPENSATION LAWS 99benefits; the other usually called the Unemployment Administration Fund2 4 to beused only for administrative expenses. Appropriations from the state for adminis-tration and any similar grants by the federal government under Tide III are placedin the second fund; contributions collected and interest earned thereon are to becredited to the first, which, in conformity to the Federal Act, is directed to be de-posited in the Unemployment Trust Fund in the United States Treasury.25 InUtah appropriations are provided but no administrative fund created.266. Employment Stabilization. The commission is generally authorized to investi-gate and to take other action with a view to stabilizing employmentyt The NewYork provision 28 is representative:"It shall be one of the purposes of this article to promote the regularization of employ-ment in enterprises, localities, industries, and the state. The commissioner shall take suchsteps as are within his means for the reduction and prevention of unemployment. To thisend the commissioner may employ experts, and may carry on and publish the results ofany investigations and research which he deems relevant, whether or not directly related tothe other purposes and specific provisions of this article."7. Reciprocal Agreements. Some of the commissions29 are given the power tomake reciprocal agreements with the proper agency in other states having unemploy-ment compensation laws so that migratory employees will not lose their right tobenefits by leaving the state of original employment.'Ala. §6 (a); Cal. §23; Dist. of Col. §15; Mass. §45; N. H. §§57, 58; N. Y. §520; Ore. §22;Wash. §17 (x); Wis. §108.20. Provision is generally made for a special "employment service account"within each fund.'Ala. §3 (d); Cal. §22; Dist. of Col. §7; Mass. §12; N. H. §4; N. Y. §515 (s); Ore. §23 (b);Wash. §4 (4); Wis. §io8.i6 (1o); c. Utah, §39.'Utah, §41 (A provision contained therein that the amount of the appropriation is to be repaid fromthe Unemployment Reserve Fund within three years may prevent this state from securing the approval ofthe Social Security Board. See Social Security Act, §903 (a) (4).=Ala. §io (f); Cal. §91; N. H. §44; N. Y. §518 (3); Utah, §27 (e); Wash. §11 (6); Wis. §108.14 (6).2N.Y. §518 (3).'Ala. §12; Dist. of Col. §17; N. H. §48; Wash. §13. It is provided in the state acts that such agree-ments are subject to the approval of the governor. A question arises whether they may not be regardedas constituting interstate compacts requiring the approval of the United States Congress. See U. S. CONST.,Art. I, §xo, cl. 3.

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The Bodies Administering Unemployment Compensation Laws

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