1. (1) Elements of Fault.

   1. (a) Materiality is established if unemployment insurance benefits were paid to which the claimant was not entitled.
   2. (b) Control is established if unemployment insurance benefits were paid based on incorrect information or an absence of information which the claimant reasonably could have provided.
   3. (c) Knowledge is established if the claimant had sufficient notice that the information may be reportable.

   Fault is established if each of the following elements is present, or as provided in Subsection (3) or (4) of this section. If one or more elements cannot be established, the overpayment does not fall under Subsection 35A-4-405(5). The elements of fault are materiality, control, and knowledge.

2. (2) Claimant Responsibility to Provide Information.

   1. (a) The claimant is responsible for providing information requested by the Department regarding the claimant's unemployment insurance benefits claim.
   2. (b) If the claimant has any questions about the claimant's eligibility for unemployment insurance benefits, or the Department's instructions, the claimant must ask the Department for clarification before certifying to eligibility.
   3. (c) If the claimant fails to seek clarification, the claimant will be at fault in any resulting overpayment.

3. (3) Receipt of Settlement or Back-Pay.

   1. (a) A claimant is at fault for the resulting overpayment if the claimant fails to advise the Department that grievance procedures are being pursued which may result in payment of back-pay wages or other settlement pay for weeks during which the claimant claims unemployment insurance benefits.
   2. (b) If the claimant advises the Department before receiving a settlement that the claimant has filed a grievance with the employer and makes an assignment directing the employer to pay to the Department that portion of the settlement equivalent to the amount of unemployment insurance benefits received, the claimant will not be at fault if an overpayment is created due to payment of wages attributable to weeks for which the claimant received unemployment insurance benefits. If the grievance is resolved in favor of the claimant and the employer was properly notified of the wage assignment, the employer is liable to immediately reimburse the Department upon settlement of the grievance. If reimbursement is not made to the Department consistent with the assignment, collection procedures will be initiated against the employer.
   3. (c) If the claimant refuses to make an assignment of the wages claimed in a grievance proceeding, unemployment insurance benefits will be withheld on the basis that the claimant is not unemployed because of anticipated receipt of wages. In this case, the claimant should file weekly claims and if back wages are not received when the grievance is resolved, unemployment insurance benefits will be paid for weeks properly claimed provided the claimant is otherwise eligible.
4. (4) Notwithstanding any other provision of this section, a claimant who may be eligible for retirement income but does not apply for retirement income until after unemployment insurance benefits have been paid, is at fault for any overpayment resulting from a retroactive payment of retirement benefits as provided in Section R994-401-203.

5. (5) Correcting Earlier Weekly Claims.

   1. (a) If a claimant reports incorrect information about the claimant's income or earnings when filing a weekly claim for unemployment insurance benefits, the claimant must immediately contact the Department to correct the information.
   2. (b) A claimant who contacts the Department to correct reported income is considered to be at fault and is responsible for repaying any resulting overpayment even if at the time the claimant filed the weekly claim for unemployment insurance benefits the claimant was unaware of the correct income or earnings.
   3. (c) A claimant who fails to contact the Department to correct inaccurately reported earnings may be subject to fraud penalties under Section R994-406-401.

KEY: overpayments, unemployment compensation

Date of Last Change: March 31, 2022

Notice of Continuation: May 2, 2022

Authorizing, and Implemented or Interpreted Law: 35A-4-406(2); 35A-4-406(3); 35A-4-406(4); 35A-4-406(5)