Session of 1999
         
HOUSE BILL No. 2068
         
By Representative Gregory
          
1-21
          
  9             AN  ACT concerning employment law; amending K.S.A. 1998 Supp. 44-
10             706 and repealing the existing section.
11      
12       Be it enacted by the Legislature of the State of Kansas:
13             Section  1. K.S.A. 1998 Supp. 44-706 is hereby amended to read as
14       follows: 44-706. An individual shall be disqualified for benefits:
15             (a) If the individual left work voluntarily without good cause attrib-
16       utable to the work or the employer, subject to the other provisions of this
17       subsection (a). After a temporary job assignment, failure of an individual
18       to affirmatively request an additional assignment on the next succeeding
19       workday, if required by the employment agreement, after completion of
20       a given work assignment, shall constitute leaving work voluntarily. The
21       disqualification shall begin the day following the separation and shall con-
22       tinue until after the individual has become reemployed and has had earn-
23       ings from insured work of at least three times the individual's weekly
24       benefit amount. An individual shall not be disqualified under this sub-
25       section (a) if:
26             (1) The individual was forced to leave work because of illness or injury
27       upon the advice of a licensed and practicing health care provider and,
28       upon learning of the necessity for absence, immediately notified the em-
29       ployer thereof, or the employer consented to the absence, and after re-
30       covery from the illness or injury, when recovery was certified by a prac-
31       ticing health care provider, the individual returned to the employer and
32       offered to perform services and the individual's regular work or compa-
33       rable and suitable work was not available; as used in this paragraph (1)
34       "health care provider" means any person licensed by the proper licensing
35       authority of any state to engage in the practice of medicine and surgery,
36       osteopathy, chiropractic, dentistry, optometry, podiatry or psychology;
37             (2) the individual left temporary work to return to the regular
38       employer;
39             (3) the individual left work to enlist in the armed forces of the United
40       States, but was rejected or delayed from entry;
41             (4) the individual left work because of the voluntary or involuntary
42       transfer of the individual's spouse from one job to another job, which is
43       for the same employer or for a different employer, at a geographic loca-

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  1       tion which makes it unreasonable for the individual to continue work at
  2       the individual's job;
  3             (5) the individual left work because of hazardous working conditions;
  4       in determining whether or not working conditions are hazardous for an
  5       individual, the degree of risk involved to the individual's health, safety
  6       and morals, the individual's physical fitness and prior training and the
  7       working conditions of workers engaged in the same or similar work for
  8       the same and other employers in the locality shall be considered; as used
  9       in this paragraph (5), "hazardous working conditions" means working con-
10       ditions that could result in a danger to the physical or mental well-being
11       of the individual; each determination as to whether hazardous working
12       conditions exist shall include, but shall not be limited to, a consideration
13       of (A) the safety measures used or the lack thereof, and (B) the condition
14       of equipment or lack of proper equipment; no work shall be considered
15       hazardous if the working conditions surrounding the individual's work are
16       the same or substantially the same as the working conditions generally
17       prevailing among individuals performing the same or similar work for
18       other employers engaged in the same or similar type of activity;
19             (6) the individual left work to enter training approved under section
20       236(a)(1) of the federal trade act of 1974, provided the work left is not
21       of a substantially equal or higher skill level than the individual's past
22       adversely affected employment (as defined for purposes of the federal
23       trade act of 1974), and wages for such work are not less than 80% of the
24       individual's average weekly wage as determined for the purposes of the
25       federal trade act of 1974;
26             (7) the individual left work because of unwelcome harassment of the
27       individual by the employer or another employee of which the employing
28       unit had knowledge;
29             (8) the individual left work to accept better work; each determination
30       as to whether or not the work accepted is better work shall include, but
31       shall not be limited to, consideration of (A) the rate of pay, the hours of
32       work and the probable permanency of the work left as compared to the
33       work accepted, (B) the cost to the individual of getting to the work left
34       in comparison to the cost of getting to the work accepted, and (C) the
35       distance from the individual's place of residence to the work accepted in
36       comparison to the distance from the individual's residence to the work
37       left;
38             (9) the individual left work as a result of being instructed or requested
39       by the employer, a supervisor or a fellow employee to perform a service
40       or commit an act in the scope of official job duties which is in violation
41       of an ordinance or statute;
42             (10) the individual left work because of a violation of the work agree-
43       ment by the employing unit and, before the individual left, the individual

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  1       had exhausted all remedies provided in such agreement for the settlement
  2       of disputes before terminating; or
  3             (11) after making reasonable efforts to preserve the work, the indi-
  4       vidual left work due to a personal emergency of such nature and com-
  5       pelling urgency that it would be contrary to good conscience to impose a
  6       disqualification.
  7             (b) If the individual has been discharged for misconduct connected
  8       with the individual's work. The disqualification shall begin the day follow-
  9       ing the separation and shall continue until after the individual becomes
10       reemployed and has had earnings from insured work of at least three
11       times the individual's determined weekly benefit amount, except that if
12       an individual is discharged for gross misconduct connected with the in-
13       dividual's work, such individual shall be disqualified for benefits until such
14       individual again becomes employed and has had earnings from insured
15       work of at least eight times such individual's determined weekly benefit
16       amount. In addition, all wage credits attributable to the employment from
17       which the individual was discharged for gross misconduct connected with
18       the individual's work shall be canceled. No such cancellation of wage
19       credits shall affect prior payments made as a result of a prior separation.
20             (1) For the purposes of this subsection (b), "misconduct" is defined
21       as a violation of a duty or obligation reasonably owed the employer as a
22       condition of employment. The term "gross misconduct" as used in this
23       subsection (b) shall be construed to mean conduct evincing extreme, will-
24       ful or wanton misconduct as defined by this subsection (b).
25             (2) For the purposes of this subsection (b), the use of or impairment
26       caused by an alcoholic beverage, a cereal malt beverage or a nonprescri-
27       bed controlled substance by an individual while working shall be conclu-
28       sive evidence of misconduct and the possession of an alcoholic beverage,
29       a cereal malt beverage or a nonprescribed controlled substance by an
30       individual while working shall be prima facie evidence of conduct which
31       is a violation of a duty or obligation reasonably owed to the employer as
32       a condition of employment. For purposes of this subsection (b), the dis-
33       qualification of an individual from employment which disqualification is
34       required by the provisions of the drug free workplace act, 41 U.S.C. 701
35       et seq. or is otherwise required by law because the individual refused to
36       submit to or failed a chemical test which was required by law, shall be
37       conclusive evidence of misconduct. Refusal to submit to a chemical test
38       administered pursuant to an employee assistance program or other drug
39       or alcohol treatment program in which the individual was participating
40       voluntarily or as a condition of further employment shall also be conclu-
41       sive evidence of misconduct. Alcoholic liquor shall be defined as provided
42       in K.S.A. 41-102 and amendments thereto. Cereal malt beverage shall be
43       defined as provided in K.S.A. 41-2701 and amendments thereto. Con-

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  1       trolled substance shall be defined as provided in K.S.A. 65-4101 and
  2       amendments thereto of the uniform controlled substances act. As used
  3       in this subsection (b)(2), "required by law" means required by a federal
  4       or state law, a federal or state rule or regulation having the force and
  5       effect of law, a county resolution or municipal ordinance, or a policy
  6       relating to public safety adopted in open meeting by the governing body
  7       of any special district or other local governmental entity. An individual's
  8       refusal to submit to a chemical test shall not be admissible evidence to
  9       prove misconduct unless the test is required by and meets the standards
10       of the drug free workplace act, 41 U.S.C. 701 et seq., the test was ad-
11       ministered as part of an employee assistance program or other drug or
12       alcohol treatment program in which the employee was participating vol-
13       untarily or as a condition of further employment, the test was otherwise
14       required by law and the test constituted a required condition of employ-
15       ment for the individual's job, or, there was probable cause to believe that
16       the individual used, possessed or was impaired by an alcoholic beverage,
17       a cereal malt beverage or a controlled substance while working. The re-
18       sults of a chemical test shall not be admissible evidence to prove miscon-
19       duct unless the following conditions were met:
20             (A) Either (i) the test was required by law, the test was administered
21       pursuant to the drug free workplace act, 41 U.S.C. 701 et seq., (ii) the
22       test was administered as part of an employee assistance program or other
23       drug or alcohol treatment program in which the employee was partici-
24       pating voluntarily or as a condition of further employment, (iii) the test
25       was required by law and the test constituted a required condition of em-
26       ployment for the individual's job, or (iv) there was probable cause to
27       believe that the individual used, had possession of, or was impaired by
28       the alcoholic beverage, the cereal malt beverage or the controlled sub-
29       stance while working;
30             (B) the test sample was collected either (i) as prescribed by the drug
31       free workplace act, 41 U.S.C. 701 et seq., (ii) as prescribed by an em-
32       ployee assistance program or other drug or alcohol treatment program in
33       which the employee was participating voluntarily or as a condition of
34       further employment, (iii) as prescribed by a test which was required by
35       law and which constituted a required condition of employment for the
36       individual's job, or (iv) at a time contemporaneous with the events estab-
37       lishing probable cause;
38             (C) the collecting and labeling of the test sample was performed by
39       a licensed health care professional or any other individual authorized to
40       collect or label test samples by federal or state law, or a federal or state
41       rule or regulation having the force and effect of law, including law en-
42       forcement personnel;
43             (D) the test was performed by a laboratory approved by the United

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  1       States department of health and human services or licensed by the de-
  2       partment of health and environment, except that a blood sample may be
  3       tested for alcohol content by a laboratory commonly used for that purpose
  4       by state law enforcement agencies;
  5             (E) the test was confirmed by gas chromatography, gas chromatog-
  6       raphy-mass spectroscopy or other comparably reliable analytical method,
  7       except that no such confirmation is required for a blood alcohol sample;
  8       and
  9             (F) the foundation evidence must establish, beyond a reasonable
10       doubt, that the test results were from the sample taken from the
11       individual.
12             (3) For the purposes of this subsection (b), misconduct shall include,
13       but not be limited to repeated absence, including lateness, from sched-
14       uled work if the facts show:
15             (A) The individual was absent without good cause;
16             (B) the absence was in violation of the employer's written absentee-
17       ism policy;
18             (C) the employer gave or sent written notice to the individual that
19       future absence will result in discharge; and
20             (D) the employee had knowledge of the employer's written absen-
21       teeism policy.
22             For the purposes of paragraph (3) of this subsection (b), the employee's
23       production of a written absenteeism policy shall create a rebuttable pre-
24       sumption that the employer furnished a copy of the absenteeism policy to
25       the employee. If the employer does not have a written absenteeism policy
26       or if the employee establishes that the employer failed to provide a copy
27       of the absenteeism policy to the employee, the employee's unauthorized
28       absence from work for a period of five consecutive working days, for
29       which the employee does not provide a satisfactory explanation, may be
30       considered by the employer as abandonment of the job, a presumed res-
31       ignation by the employee, and repeated absence within the meaning of
32       paragraph (3) of this subsection (b). The employer shall establish the em-
33       ployee's misconduct based upon absenteeism by a preponderance of the
34       evidence.
35             (4) An individual shall not be disqualified under this subsection (b)
36       if the individual is discharged under the following circumstances:
37             (A) The employer discharged the individual after learning the indi-
38       vidual was seeking other work or when the individual gave notice of future
39       intent to quit;
40             (B) the individual was making a good-faith effort to do the assigned
41       work but was discharged due to: (i) Inefficiency, (ii) unsatisfactory per-
42       formance due to inability, incapacity or lack of training or experience, (iii)
43       isolated instances of ordinary negligence or inadvertence, (iv) good-faith

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  1       errors in judgment or discretion, or (v) unsatisfactory work or conduct
  2       due to circumstances beyond the individual's control; or
  3             (C) the individual's refusal to perform work in excess of the contract
  4       of hire. ; or
  5             (D) the individual was instructed or requested by the employer, a
  6       supervisor or a fellow employee to perform a service or commit an act in
  7       the scope of official job duties which is in violation of an ordinance or
  8       statute.
  9             (c) If the individual has failed, without good cause, to either apply
10       for suitable work when so directed by the employment office of the sec-
11       retary of human resources, or to accept suitable work when offered to
12       the individual by the employment office, the secretary of human re-
13       sources, or an employer, such disqualification shall begin with the week
14       in which such failure occurred and shall continue until the individual
15       becomes reemployed and has had earnings from insured work of at least
16       three times such individual's determined weekly benefit amount. In de-
17       termining whether or not any work is suitable for an individual, the sec-
18       retary of human resources, or a person or persons designated by the
19       secretary, shall consider the degree of risk involved to health, safety and
20       morals, physical fitness and prior training, experience and prior earnings,
21       length of unemployment and prospects for securing local work in the
22       individual's customary occupation or work for which the individual is rea-
23       sonably fitted by training or experience, and the distance of the available
24       work from the individual's residence. Notwithstanding any other provi-
25       sions of this act, an otherwise eligible individual shall not be disqualified
26       for refusing an offer of suitable employment, or failing to apply for suit-
27       able employment when notified by an employment office, or for leaving
28       the individual's most recent work accepted during approved training, in-
29       cluding training approved under section 236(a)(1) of the trade act of 1974,
30       if the acceptance of or applying for suitable employment or continuing
31       such work would require the individual to terminate approved training
32       and no work shall be deemed suitable and benefits shall not be denied
33       under this act to any otherwise eligible individual for refusing to accept
34       new work under any of the following conditions: (1) If the position offered
35       is vacant due directly to a strike, lockout or other labor dispute; (2) if the
36       remuneration, hours or other conditions of the work offered are substan-
37       tially less favorable to the individual than those prevailing for similar work
38       in the locality; (3) if as a condition of being employed, the individual would
39       be required to join or to resign from or refrain from joining any labor
40       organization.
41             (d) For any week with respect to which the secretary of human re-
42       sources, or a person or persons designated by the secretary, finds that the
43       individual's unemployment is due to a stoppage of work which exists be-

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  1       cause of a labor dispute or there would have been a work stoppage had
  2       normal operations not been maintained with other personnel previously
  3       and currently employed by the same employer at the factory, establish-
  4       ment or other premises at which the individual is or was last employed,
  5       except that this subsection (d) shall not apply if it is shown to the satis-
  6       faction of the secretary of human resources, or a person or persons des-
  7       ignated by the secretary, that: (1) The individual is not participating in or
  8       financing or directly interested in the labor dispute which caused the
  9       stoppage of work; and (2) the individual does not belong to a grade or
10       class of workers of which, immediately before the commencement of the
11       stoppage, there were members employed at the premises at which the
12       stoppage occurs any of whom are participating in or financing or directly
13       interested in the dispute. If in any case separate branches of work which
14       are commonly conducted as separate businesses in separate premises are
15       conducted in separate departments of the same premises, each such de-
16       partment shall, for the purpose of this subsection (d), be deemed to be
17       a separate factory, establishment or other premises. For the purposes of
18       this subsection (d), failure or refusal to cross a picket line or refusal for
19       any reason during the continuance of such labor dispute to accept the
20       individual's available and customary work at the factory, establishment or
21       other premises where the individual is or was last employed shall be
22       considered as participation and interest in the labor dispute.
23             (e) For any week with respect to which or a part of which the indi-
24       vidual has received or is seeking unemployment benefits under the un-
25       employment compensation law of any other state or of the United States,
26       except that if the appropriate agency of such other state or the United
27       States finally determines that the individual is not entitled to such un-
28       employment benefits, this disqualification shall not apply.
29             (f) For any week with respect to which the individual is entitled to
30       receive any unemployment allowance or compensation granted by the
31       United States under an act of congress to ex-service men and women in
32       recognition of former service with the military or naval services of the
33       United States.
34             (g) For the period of one year beginning with the first day following
35       the last week of unemployment for which the individual received benefits,
36       or for one year from the date the act was committed, whichever is the
37       later, if the individual, or another in such individual's behalf with the
38       knowledge of the individual, has knowingly made a false statement or
39       representation, or has knowingly failed to disclose a material fact to obtain
40       or increase benefits under this act or any other unemployment compen-
41       sation law administered by the secretary of human resources.
42             (h) For any week with respect to which the individual is receiving
43       compensation for temporary total disability or permanent total disability

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  1       under the workmen's compensation law of any state or under a similar
  2       law of the United States.
  3             (i) For any week of unemployment on the basis of service in an in-
  4       structional, research or principal administrative capacity for an educa-
  5       tional institution as defined in subsection (v) of K.S.A. 44-703 and amend-
  6       ments thereto, if such week begins during the period between two
  7       successive academic years or terms or, when an agreement provides in-
  8       stead for a similar period between two regular but not successive terms
  9       during such period or during a period of paid sabbatical leave provided
10       for in the individual's contract, if the individual performs such services in
11       the first of such academic years or terms and there is a contract or a
12       reasonable assurance that such individual will perform services in any
13       such capacity for any educational institution in the second of such aca-
14       demic years or terms.
15             (j) For any week of unemployment on the basis of service in any
16       capacity other than service in an instructional, research, or administrative
17       capacity in an educational institution, as defined in subsection (v) of
18       K.S.A. 44-703 and amendments thereto, if such week begins during the
19       period between two successive academic years or terms if the individual
20       performs such services in the first of such academic years or terms and
21       there is a reasonable assurance that the individual will perform such serv-
22       ices in the second of such academic years or terms, except that if benefits
23       are denied to the individual under this subsection (j) and the individual
24       was not offered an opportunity to perform such services for the educa-
25       tional institution for the second of such academic years or terms, such
26       individual shall be entitled to a retroactive payment of benefits for each
27       week for which the individual filed a timely claim for benefits and for
28       which benefits were denied solely by reason of this subsection (j).
29             (k) For any week of unemployment on the basis of service in any
30       capacity for an educational institution as defined in subsection (v) of
31       K.S.A. 44-703 and amendments thereto, if such week begins during an
32       established and customary vacation period or holiday recess, if the indi-
33       vidual performs services in the period immediately before such vacation
34       period or holiday recess and there is a reasonable assurance that such
35       individual will perform such services in the period immediately following
36       such vacation period or holiday recess.
37             (l) For any week of unemployment on the basis of any services, sub-
38       stantially all of which consist of participating in sports or athletic events
39       or training or preparing to so participate, if such week begins during the
40       period between two successive sport seasons or similar period if such
41       individual performed services in the first of such seasons or similar per-
42       iods and there is a reasonable assurance that such individual will perform
43       such services in the later of such seasons or similar periods.

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  1             (m) For any week on the basis of services performed by an alien
  2       unless such alien is an individual who was lawfully admitted for perma-
  3       nent residence at the time such services were performed, was lawfully
  4       present for purposes of performing such services, or was permanently
  5       residing in the United States under color of law at the time such services
  6       were performed, including an alien who was lawfully present in the
  7       United States as a result of the application of the provisions of section
  8       212(d)(5) of the federal immigration and nationality act. Any data or in-
  9       formation required of individuals applying for benefits to determine
10       whether benefits are not payable to them because of their alien status
11       shall be uniformly required from all applicants for benefits. In the case
12       of an individual whose application for benefits would otherwise be ap-
13       proved, no determination that benefits to such individual are not payable
14       because of such individual's alien status shall be made except upon a
15       preponderance of the evidence.
16             (n) For any week in which an individual is receiving a governmental
17       or other pension, retirement or retired pay, annuity or other similar pe-
18       riodic payment under a plan maintained by a base period employer and
19       to which the entire contributions were provided by such employer, except
20       that: (1) If the entire contributions to such plan were provided by the
21       base period employer but such individual's weekly benefit amount ex-
22       ceeds such governmental or other pension, retirement or retired pay,
23       annuity or other similar periodic payment attributable to such week, the
24       weekly benefit amount payable to the individual shall be reduced (but
25       not below zero) by an amount equal to the amount of such pension,
26       retirement or retired pay, annuity or other similar periodic payment
27       which is attributable to such week; or (2) if only a portion of contributions
28       to such plan were provided by the base period employer, the weekly
29       benefit amount payable to such individual for such week shall be reduced
30       (but not below zero) by the prorated weekly amount of the pension, re-
31       tirement or retired pay, annuity or other similar periodic payment after
32       deduction of that portion of the pension, retirement or retired pay, an-
33       nuity or other similar periodic payment that is directly attributable to the
34       percentage of the contributions made to the plan by such individual; or
35       (3) if the entire contributions to the plan were provided by such individ-
36       ual, or by the individual and an employer (or any person or organization)
37       who is not a base period employer, no reduction in the weekly benefit
38       amount payable to the individual for such week shall be made under this
39       subsection (n); or (4) whatever portion of contributions to such plan were
40       provided by the base period employer, if the services performed for the
41       employer by such individual during the base period, or remuneration
42       received for the services, did not affect the individual's eligibility for, or
43       increased the amount of, such pension, retirement or retired pay, annuity

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  1       or other similar periodic payment, no reduction in the weekly benefit
  2       amount payable to the individual for such week shall be made under this
  3       subsection (n). The conditions specified in clause (4) of this subsection
  4       (n) shall not apply to payments made under the social security act or the
  5       railroad retirement act of 1974, or the corresponding provisions of prior
  6       law. Payments made under these acts shall be treated as otherwise pro-
  7       vided in this subsection (n). If the reduced weekly benefit amount is not
  8       a multiple of $1, it shall be reduced to the next lower multiple of $1.
  9             (o) For any week of unemployment on the basis of services per-
10       formed in any capacity and under any of the circumstances described in
11       subsection (i), (j) or (k) which an individual performed in an educational
12       institution while in the employ of an educational service agency. For the
13       purposes of this subsection (o), the term "educational service agency"
14       means a governmental agency or entity which is established and operated
15       exclusively for the purpose of providing such services to one or more
16       educational institutions.
17             (p) For any week of unemployment on the basis of service as a school
18       bus or other motor vehicle driver employed by a private contractor to
19       transport pupils, students and school personnel to or from school-related
20       functions or activities for an educational institution, as defined in subsec-
21       tion (v) of K.S.A. 44-703 and amendments thereto, if such week begins
22       during the period between two successive academic years or during a
23       similar period between two regular terms, whether or not successive, if
24       the individual has a contract or contracts, or a reasonable assurance
25       thereof, to perform services in any such capacity with a private contractor
26       for any educational institution for both such academic years or both such
27       terms. An individual shall not be disqualified for benefits as provided in
28       this subsection (p) for any week of unemployment on the basis of service
29       as a bus or other motor vehicle driver employed by a private contractor
30       to transport persons to or from nonschool-related functions or activities.
31             (q) For any week of unemployment on the basis of services per-
32       formed by the individual in any capacity and under any of the circum-
33       stances described in subsection (i), (j), (k) or (o) which are provided to
34       or on behalf of an educational institution, as defined in subsection (v) of
35       K.S.A. 44-703 and amendments thereto, while the individual is in the
36       employ of an employer which is a governmental entity or any employer
37       described in section 501(c)(3) of the federal internal revenue code of 1986
38       which is exempt from income under section 501(a) of the code.
39             (r) For any week in which an individual is registered at and attending
40       an established school, training facility or other educational institution, or
41       is on vacation during or between two successive academic years or terms.
42       An individual shall not be disqualified for benefits as provided in this
43       subsection (r) provided:

HB 2068

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  1             (1) The individual was engaged in full-time employment concurrent
  2       with the individual's school attendance; or
  3             (2) the individual is attending approved training as defined in sub-
  4       section (s) of K.S.A. 44-703 and amendments thereto; or
  5             (3) the individual is attending evening, weekend or limited day time
  6       classes, which would not affect availability for work, and is otherwise
  7       eligible under subsection (c) of K.S.A. 44-705 and amendments thereto.
  8             (s) For any week with respect to which an individual is receiving or
  9       has received remuneration in the form of a back pay award or settlement.
10       The remuneration shall be allocated to the week or weeks in the manner
11       as specified in the award or agreement, or in the absence of such speci-
12       ficity in the award or agreement, such remuneration shall be allocated to
13       the week or weeks in which such remuneration, in the judgment of the
14       secretary, would have been paid.
15             (1) For any such weeks that an individual receives renumeration in
16       the form of a back pay award or settlement, an overpayment will be
17       established in the amount of unemployment benefits paid and shall be
18       collected from the claimant.
19             (2) If an employer chooses to withhold from a back pay award or
20       settlement, amounts paid to a claimant while they claimed unemployment
21       benefits, such employer shall pay the department the amount withheld.
22       With respect to such amount, the secretary shall have available all of the
23       collection remedies authorized or provided in section K.S.A. 44-717, and
24       amendments thereto. 
25       Sec.  2. K.S.A. 1998 Supp. 44-706 is hereby repealed.
26        Sec.  3. This act shall take effect and be in force from and after its
27       publication in the statute book.