COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 288
(By Senators Hunter, Rowe, Caldwell, Fanning, Mitchell, Bailey,
Edgell, Burnette, Minard, Anderson, Ross, Unger, Redd, Wooton,
Deem, Prezioso, Helmick, Kessler, Sprouse, Minear, Love, Sharpe,
McCabe, Bowman, Plymale and Tomblin, Mr. President)
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[Originating in the Committee on Military;
reported February 1, 2002.]
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A BILL to amend and reenact sections seventeen and twenty-eight,
article one-a, chapter twenty-one-a of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
all relating to the definition of wages for employment service
with the state national guard and the air national guard for
purposes of calculating unemployment benefits.
Be it enacted by the Legislature of West Virginia:
That sections seventeen and twenty-eight, article one-a,
chapter twenty-one-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted,
all
to read as follows:
ARTICLE 1A. DEFINITIONS.
§21A-1A-17. Exclusions from employment.
The term "employment" does not include:
(1) Service performed in the employ of the United States or
any instrumentality of the United States exempt under the
constitution of the United States from the payments imposed by this
law, except that to the extent that the Congress of the United
States permits states to require any instrumentalities of the
United States to make payments into an unemployment fund under a
state unemployment compensation law, all of the provisions of this
law are applicable to the instrumentalities and to service
performed for the instrumentalities in the same manner, to the same
extent and on the same terms as to all other employers, employing
units, individuals and services: Provided, That if this state is
not certified for any year by the secretary of labor under
26 U.S.C. §3404, subsection (c), the payments required of the
instrumentalities with respect to the year shall be refunded by the
commissioner from the fund in the same manner and within the same
period as is provided in section nineteen, article five of this
chapter with respect to payments erroneously collected;
(2) Service performed with respect to which unemployment
compensation is payable under the Railroad Unemployment Insurance
Act and service with respect to which unemployment benefits are
payable under an unemployment compensation system for maritime
employees established by an act of Congress. The commissioner may
enter into agreements with the proper agency established under an act of Congress to provide reciprocal treatment to individuals who,
after acquiring potential rights to unemployment compensation under
an act of Congress or who have, after acquiring potential rights to
unemployment compensation under an act of Congress, acquired rights
to benefit under this chapter. Such agreement shall become
effective ten days after the publications which shall comply with
the general rules of the department;
(3) Service performed by an individual in agricultural labor,
except as provided in subdivision (12), section sixteen of this
article, the definition of "employment". For purposes of this
subdivision, the term "agricultural labor" includes all services
performed:
(A) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting
any agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training and management of
livestock, bees, poultry and fur-bearing animals and wildlife;
(B) In the employ of the owner or tenant or other operator of
a farm, in connection with the operation, management, conservation,
improvement or maintenance of the farm and its tools and equipment,
or in salvaging timber or clearing land of brush and other debris
left by a hurricane, if the major part of the service is performed
on a farm;
(C) In connection with the production or harvesting of any
commodity defined as an agricultural commodity in section fifteen (g) of the Agricultural Marketing Act, as amended, as codified in
12 U.S.C. §1141j, subsection (g), or in connection with the ginning
of cotton, or in connection with the operation or maintenance of
ditches, canals, reservoirs or waterways, not owned or operated for
profit, used exclusively for supplying and storing water for
farming purposes;
(D) (i) In the employ of the operator of a farm in handling,
planting, drying, packing, packaging, processing, freezing,
grading, storing or delivering to storage or to market or to a
carrier for transportation to market, in its unmanufactured state,
any agricultural or horticultural commodity; but only if the
operator produced more than one half of the commodity with respect
to which the service is performed; or (ii) in the employ of a group
of operators of farms (or a cooperative organization of which the
operators are members) in the performance of service described in
subparagraph (i) of this paragraph, but only if the operators
produced more than one half of the commodity with respect to which
the service is performed; but the provisions of subparagraphs (i)
and (ii) of this paragraph are not applicable with respect to
service performed in connection with commercial canning or
commercial freezing or in connection with any agricultural or
horticultural commodity after its delivery to a terminal market for
distribution for consumption;
(E) On a farm operated for profit if the service is not in the
course of the employer's trade or business or is domestic service in a private home of the employer. As used in this subdivision,
the term "farm" includes stock, dairy, poultry, fruit, fur-bearing
animals, truck farms, plantations, ranches, greenhouses, ranges and
nurseries, or other similar land areas or structures used primarily
for the raising of any agricultural or horticultural commodities;
(4) Domestic service in a private home except as provided in
subdivision (13), section sixteen of this article, the definition
of "employment";
(5) Service performed by an individual in the employ of his or
her son, daughter or spouse;
(6) Service performed by a child under the age of eighteen
years in the employ of his or her father or mother;
(7) Service as an officer or member of a crew of an American
vessel, performed on or in connection with the vessel, if the
operating office, from which the operations of the vessel operating
on navigable waters within or without the United States are
ordinarily and regularly supervised, managed, directed and
controlled, is without this state;
(8) Service performed by agents of mutual fund broker-dealers
or insurance companies, exclusive of industrial insurance agents,
or by agents of investment companies, who are compensated wholly on
a commission basis;
(9) Service performed: (A) In the employ of a church or
convention or association of churches, or an organization which is
operated primarily for religious purposes and which is operated, supervised, controlled or principally supported by a church or
convention or association of churches; or (B) by a duly ordained,
commissioned or licensed minister of a church in the exercise of
his or her ministry or by a member of a religious order in the
exercise of duties required by the order; or (C) by an individual
receiving rehabilitation or remunerative work in a facility
conducted for the purpose of carrying out a program of either: (i)
Rehabilitation for individuals whose earning capacity is impaired
by age or physical or mental deficiency or injury; or (ii)
providing remunerative work for individuals who because of their
impaired physical or mental capacity cannot be readily absorbed in
the competitive labor market: Provided, That this exemption does
not apply to services performed by individuals if they are not
receiving rehabilitation or remunerative work on account of their
impaired capacity; or (D) as part of an unemployment work-relief or
work-training program assisted or financed, in whole or in part, by
any federal agency or an agency of a state or political subdivision
thereof, by an individual receiving the work relief or work
training; or (E) by an inmate of a custodial or penal institution;
(10) Service performed in the employ of a school, college or
university, if the service is performed: (A) By a student who is
enrolled and is regularly attending classes at the school, college
or university; or (B) by the spouse of a student, if the spouse is
advised, at the time the spouse commences to perform the service,
that: (i) The employment of the spouse to perform the service is provided under a program to provide financial assistance to the
student by the school, college or university; and (ii) the
employment will not be covered by any program of unemployment
insurance;
(11) Service performed by an individual who is enrolled at a
nonprofit or public educational institution which normally
maintains a regular faculty and curriculum and normally has a
regularly organized body of students in attendance at the place
where its educational activities are carried on as a student in a
full-time program, taken for credit at the institution, which
combines academic instruction with work experience, if the service
is an integral part of the program and the institution has so
certified to the employer, except that this subdivision does not
apply to service performed in a program established for or on
behalf of an employer or group of employers;
(12) Service performed in the employ of a hospital, if the
service is performed by a patient of the hospital, as defined in
this article;
(13) Service in the employ of a governmental entity referred
to in subdivision (9), section sixteen of this article, the
definition of "employment", if the service is performed by an
individual in the exercise of duties: (A) As an elected official;
(B) as a member of a legislative body, or a member of the
judiciary, of a state or political subdivision; (C) as a member of
the state national guard or air national guard, except as provided in section twenty-eight of this article; (D) as an employee serving
on a temporary basis in case of fire, storm, snow, earthquake,
flood or similar emergency; (E) in a position which, under or
pursuant to the laws of this state, is designated as: (i) A major
nontenured policymaking or advisory position; or (ii) a
policymaking or advisory position the performance of the duties of
which ordinarily does not require more than eight hours per week;
(14) Service performed by a bona fide partner of a partnership
for the partnership; and
(15) Service performed by a person for his or her own sole
proprietorship.
Notwithstanding the foregoing exclusions from the definition
of "employment", services, except agricultural labor and domestic
service in a private home, are in employment if with respect to the
services a tax is required to be paid under any federal law
imposing a tax against which credit may be taken for contributions
required to be paid into a state unemployment compensation fund, or
which as a condition for full tax credit against the tax imposed by
the federal Unemployment Tax Act are required to be covered under
this chapter.
§21A-1A-28. Wages.
(a) "Wages" means all remuneration for personal service,
including commissions, gratuities customarily received by an
individual in the course of employment from persons other than the
employing unit, as long as such gratuities equal or exceed an amount of not less than twenty dollars each month and which are
required to be reported to the employer by the employee, bonuses,
and the cash value of all remuneration in any medium other than
cash except for agricultural labor and domestic service. The term
wages includes remuneration for service rendered to the state as a
member of the state national guard or air national guard only when
serving on a temporary basis pursuant to a call made by the
governor under sections one and two, article one-d, chapter fifteen
of this code.
(b) The term "wages" does not include:
(1) That part of the remuneration which, after remuneration
equal to eight thousand dollars is paid during a calendar year to
an individual by an employer or his or her predecessor with respect
to employment during any calendar year, is paid to such individual
by such employer during such calendar year unless that part of the
remuneration is subject to a tax under a federal law imposing a tax
against which credit may be taken for contributions required to be
paid into a state unemployment fund. For the purposes of this
section, the term "employment" includes service constituting
employment under any unemployment compensation law of another
state; or which as a condition for full tax credit against the tax
imposed by the federal Unemployment Tax Act is required to be
covered under this chapter; and, except that for the purposes of
sections one, ten, eleven and thirteen, article six of this
chapter, all remuneration earned by an individual in employment shall be credited to the individual and included in his or her
computation of base period wages: Provided, That the remuneration
paid to an individual by an employer with respect to employment in
another state or other states upon which contributions were
required of and paid by such employer under an unemployment
compensation law of such other state or states shall be included as
a part of the remuneration equal to the amounts of eight thousand
dollars herein referred to. In applying such limitation on the
amount of remuneration that is taxable, an employer shall be
accorded the benefit of all or any portion of such amount which may
have been paid by its predecessor or predecessors: Provided,
however, That if the definition of the term "wages" as contained in
Section 3306(b) of the Internal Revenue Code of 1954, as amended,
is amended to include remuneration in excess of eight thousand
dollars, paid to an individual by an employer under the federal
Unemployment Tax Act during any calendar year, wages for the
purposes of this definition shall include remuneration paid in a
calendar year to an individual by an employer subject to this
chapter or his or her predecessor with respect to employment during
any calendar year up to an amount equal to the amount of
remuneration taxable under the federal Unemployment Tax Act;
(2) The amount of any payment made (including any amount paid
by an employer for insurance or annuities, or into a fund, to
provide for any such payment) to, or on behalf of, an individual in
its employ or any of his or her dependents, under a plan or system established by an employer which makes provision for individuals in
its employ generally (or for such individuals and their
dependents), or for a class or classes of such individuals (or for
a class or classes of such individuals and their dependents) on
account of: (A) Retirement; or (B) sickness or accident disability
payments made to an employee under an approved state workers'
compensation law; or (C) medical or hospitalization expenses in
connection with sickness or accident disability; or (D) death;
(3) Any payment made by an employer to an individual in its
employ (including any amount paid by an employer for insurance or
annuities, or into a fund, to provide for any such payment) on
account of retirement;
(4) Any payment made by an employer on account of sickness or
accident disability, or medical or hospitalization expenses in
connection with sickness or accident disability to, or on behalf
of, an individual in its employ after the expiration of six
calendar months following the last calendar month in which such
individual worked for such employer;
(5) Any payment made by an employer to, or on behalf of, an
individual in its employ or his or her beneficiary: (A) From or to
a trust described in Section 401(a) which is exempt from tax under
Section 501(a) of the federal Internal Revenue Code at the time of
such payments unless such payment is made to such individual as an
employee of the trust as remuneration for services rendered by such
individual and not as a beneficiary of the trust; or (B) under or to an annuity plan which, at the time of such payment, is a plan
described in Section 403(a) of the federal Internal Revenue Code;
(6) The payment by an employer of the tax imposed upon an
employer under Section 3101 of the federal Internal Revenue Code
with respect to remuneration paid to an employee for domestic
service in a private home or the employer of agricultural labor;
(7) Remuneration paid by an employer in any medium other than
cash to an individual in its employ for service not in the course
of the employer's trade or business;
(8) Any payment (other than vacation or sick pay) made by an
employer to an individual in its employ after the month in which he
or she attains the age of sixty-five, if he or she did not work for
the employer in the period for which such payment is made;
(9) Payments, not required under any contract of hire, made to
an individual with respect to his or her period of training or
service in the armed forces of the United States by an employer by
which such individual was formerly employed; and
(10) Vacation pay, severance pay or savings plans received by
an individual before or after becoming totally or partially
unemployed but earned prior to becoming totally or partially
unemployed: Provided, That the term totally or partially
unemployed does not include: (A) Employees who are on vacation by
reason of the request of the employees or their duly authorized
agent, for a vacation at a specific time, and which request by the
employees or their agent is acceded to by their employer; (B) employees who are on vacation by reason of the employer's request
provided they are so informed at least ninety days prior to such
vacation; or (C) employees who are on vacation by reason of the
employer's request where such vacation is in addition to the
regular vacation and the employer compensates such employee at a
rate equal to or exceeding their regular daily rate of pay during
the vacation period.
(c) The reasonable cash value of remuneration in any medium
other than cash shall be estimated and determined in accordance
with rules prescribed by the commissioner, except for remuneration
other than cash for services performed in agricultural labor and
domestic service.
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(NOTE: The purpose of this bill is to clarify the definition
of wages for employment service with the state national guard and
the air national guard for purposes of calculating unemployment
benefits.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)
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