ENROLLED
H. B. 2626
(By Delegates L. White, Manuel, Pethtel,
Gallagher, Kessel, Pino and Tribett)
[Passed April 10, 1993; in effect from passage.]
AN ACT to amend and reenact section three, article one, chapter
twenty-one-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section one, article six-a of said chapter, all relating to
unemployment compensation coverage and benefits.
Be it enacted by the Legislature of West Virginia:
That section three, article one, chapter twenty-one-a of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section one, article
six-a of said chapter be amended and reenacted, all to read as
follows:
ARTICLE 1. BUREAU OF EMPLOYMENT PROGRAMS.
§21A-1-3. Definitions.
As used in this chapter, unless the context clearly requires
otherwise:
"Administration fund" means the employment security
administration fund, from which the administrative expenses under
this chapter shall be paid.
"Annual payroll" means the total amount of wages for
employment paid by an employer during a twelve-month periodending with the thirtieth day of June of any calendar year.
"Average annual payroll" means the average of the last three
annual payrolls of an employer.
"Base period" means the first four out of the last five
completed calendar quarters immediately preceding the first day
of the individual benefit year.
"Base period employer" means any employer who in the base
period for any benefit year paid wages to an individual who filed
claim for unemployment compensation within such benefit year.
"Base period wages" means wages paid to an individual during
the base period by all his base period employers.
"Benefit year" with respect to an individual means the
fifty-two-week period beginning with the first day of the
calendar week in which a valid claim is effective, and thereafter
the fifty-two-week period beginning with the first day of the
calendar week in which such individual next files a valid claim
for benefits after the termination of his last preceding benefit
year; however, if a claim is effective on the first day of a
quarter, the benefit year will be fifty-three weeks, in order to
prevent an overlapping of the base period wages. An initial
claim for benefits filed in accordance with the provisions of
this chapter shall be considered to be a valid claim within the
purposes of this definition if the individual has been paid wages
in his base period sufficient to make him eligible for benefits
under the provisions of this chapter.
"Benefits" means the money payable to an individual with
respect to his unemployment.
"Board" means board of review.
"Calendar quarter" means the period of three consecutive
calendar months ending on the thirty-first day of March, the
thirtieth day of June, the thirtieth day of September, the
thirty-first day of December, or the equivalent thereof as the
commissioner may by regulation prescribe.
"Commissioner" means the bureau of employment programs'
commissioner.
"Computation date" means the thirtieth day of June the year
immediately preceding the first day of January on which an
employer's contribution rate becomes effective.
"Employing unit" means an individual, or type of
organization, including any partnership, association, trust,
estate, joint-stock company, insurance company, corporation
(domestic or foreign), state or political subdivision thereof, or
their instrumentalities, as provided in paragraph (b),
subdivision (9) of the definition of "employment" in this
section, institution of higher education, or the receiver,
trustee in bankruptcy, trustee or successor thereof, or the legal
representative of a deceased person, which has on the first day
of January, one thousand nine hundred thirty-five, or subsequent
thereto, had in its employ one or more individuals performing
service within this state.
"Employer" means:
(1) Until the first day of January, one thousand nine
hundred seventy-two, any employing unit which for some portion of
a day, not necessarily simultaneously, in each of twenty
different calendar weeks, which weeks need not be consecutive,
within either the current calendar year, or the precedingcalendar year, has had in employment four or more individuals
irrespective of whether the same individuals were or were not
employed on each of such days;
(2) Any employing unit which is or becomes a liable employer
under any federal unemployment tax act;
(3) Any employing unit which has acquired or acquires the
organization, trade or business, or substantially all the assets
thereof, of an employing unit which at the time of such
acquisition was an employer subject to this chapter;
(4) Any employing unit which, after the thirty-first day of
December, one thousand nine hundred sixty-three, and until the
first day of January, one thousand nine hundred seventy-two, in
any one calendar quarter, in any calendar year, has in employment
four or more individuals and has paid wages for employment in the
total sum of five thousand dollars or more, or which, after such
date, has paid wages for employment in any calendar year in the
sum total of twenty thousand dollars or more;
(5) Any employing unit which, after the thirty-first day of
December, one thousand nine hundred sixty-three, and until the
first day of January, one thousand nine hundred seventy-two, in
any three-week period, in any calendar year, has in employment
ten or more individuals;
(6) For the effective period of its election pursuant to
section three, article five of this chapter, any employing unit
which has elected to become subject to this chapter;
(7) Any employing unit which, after the thirty-first day of
December, one thousand nine hundred seventy-one, (i) in any
calendar quarter in either the current or preceding calendar yearpaid for service in employment wages of one thousand five hundred
dollars or more, or (ii) for some portion of a day in each of
twenty different calendar weeks, whether or not such weeks were
consecutive, in either the current or the preceding calendar year
had in employment at least one individual (irrespective of
whether the same individual was in employment in each such day)
except as provided in subdivisions (11) and (12) hereof;
(8) Any employing unit for which service in employment, as
defined in subdivision (9) of the definition of "employment" in
this section, is performed after the thirty-first day of
December, one thousand nine hundred seventy-one;
(9) Any employing unit for which service in employment, as
defined in subdivision (10) of the definition of "employment" in
this section, is performed after the thirty-first day of
December, one thousand nine hundred seventy-one;
(10) Any employing unit for which service in employment, as
defined in paragraphs (b) and (c) of subdivision (9) of the
definition of "employment" in this section, is performed after
the thirty-first day of December, one thousand nine hundred
seventy-seven;
(11) Any employing unit for which agricultural labor, as
defined in subdivision (12) of the definition of "employment" in
this section, is performed after the thirty-first day of
December, one thousand nine hundred seventy-seven; or
(12) Any employing unit for which domestic service in
employment, as defined in subdivision (13) of the definition of
"employment" in this section, is performed after the thirty-first
day of December, one thousand nine hundred seventy-seven.
"Employment", subject to the other provisions of this
section, means:
(1) Service, including service in interstate commerce,
performed for wages or under any contract of hire, written or
oral, express or implied;
(2) Any service performed prior to the first day of January,
one thousand nine hundred seventy-two, which was employment as
defined in this section prior to such date and, subject to the
other provisions of this section, service performed after the
thirty-first day of December, one thousand nine hundred seventy-
one, by an employee, as defined in section 3306 (i) of the
Federal Unemployment Tax Act, including service in interstate
commerce;
(3) Any service performed prior to the first day of January,
one thousand nine hundred seventy-two, which was employment as
defined in this section prior to such date and, subject to the
other provisions of this section, service performed after the
thirty-first day of December, one thousand nine hundred seventy-
one, including service in interstate commerce, by any officer of
a corporation;
(4) An individual's entire service, performed within or both
within and without this state if: (a) The service is localized
in this state, or (b) the service is not localized in any state
but some of the service is performed in this state and (i) the
base of operations, or, if there is no base of operations, then
the place from which such service is directed or controlled, is
in this state; or (ii) the base of operations or place from which
such service is directed or controlled is not in any state inwhich some part of the service is performed but the individual's
residence is in this state;
(5) Service not covered under paragraph (4) of this
subdivision and performed entirely without this state with
respect to no part of which contributions are required and paid
under an unemployment compensation law of any other state or of
the federal government, is employment subject to this chapter if
the individual performing such services is a resident of this
state and the commissioner approves the election of the employing
unit for whom such services are performed that the entire service
of such individual is employment subject to this chapter;
(6) Service is localized within a state, if: (a) The
service is performed entirely within such state; or (b) the
service is performed both within and without such state, but the
service performed without such state is incidental to the
individual's service within this state, as, for example, is
temporary or transitory in nature or consists of isolated
transactions;
(7) Services performed by an individual for wages are
employment subject to this chapter unless and until it is shown
to the satisfaction of the commissioner that: (a) Such
individual has been and will continue to be free from control or
direction over the performance of such services, both under his
contract of service and in fact; and (b) such service is either
outside the usual course of the business for which such service
is performed or that such service is performed outside of all the
places of business of the enterprise for which such service is
performed; and (c) such individual is customarily engaged in anindependently established trade, occupation, profession or
business;
(8) All service performed by an officer or member of the
crew of an American vessel (as defined in section three hundred
five of an act of Congress entitled Social Security Act Amendment
of 1946, approved the tenth day of August, one thousand nine
hundred forty-six), on or in connection with such vessel,
provided that the operating office, from which the operations of
such vessel operating on navigable waters within and without the
United States is ordinarily and regularly supervised, managed,
directed and controlled, is within this state;
(9) (a) Service performed after the thirty-first day of
December, one thousand nine hundred seventy-one, by an individual
in the employ of this state or any of its instrumentalities (or
in the employ of this state and one or more other states or their
instrumentalities) for a hospital or institution of higher
education located in this state:
Provided,
That such service is
excluded from "employment" as defined in the Federal Unemployment
Tax Act solely by reason of section 3306 (c) (7) of that act and
is not excluded from "employment" under subdivision (11) of the
exclusion from employment in this section;
(b) Service performed after the thirty-first day of
December, one thousand nine hundred seventy-seven, in the employ
of this state or any of its instrumentalities or political
subdivisions thereof or any of its instrumentalities or any
instrumentality of more than one of the foregoing or any
instrumentality of any foregoing and one or more other states or
political subdivisions:
Provided,
That such service is excludedfrom "employment" as defined in the Federal Unemployment Tax Act
by section 3306 (c) (7) of that act and is not excluded from
"employment" under subdivision (15) of the exclusion from
employment in this section; and
(c) Service performed after the thirty-first day of
December, one thousand nine hundred seventy-seven, in the employ
of a nonprofit educational institution which is not an
institution of higher education;
(10) Service performed after the thirty-first day of
December, one thousand nine hundred seventy-one, by an individual
in the employ of a religious, charitable, educational or other
organization but only if the following conditions are met:
(a) The service is excluded from "employment" as defined in
the Federal Unemployment Tax Act solely by reason of section 3306
(c) (8) of that act; and
(b) The organization had four or more individuals in
employment for some portion of a day in each of twenty different
weeks, whether or not such weeks were consecutive, within either
the current or preceding calendar year, regardless of whether
they were employed at the same moment of time;
(11) Service of an individual who is a citizen of the United
States, performed outside the United States after the thirty-
first day of December, one thousand nine hundred seventy-one
(except in Canada and in the case of Virgin Islands after the
thirty-first day of December, one thousand nine hundred seventy-
one, and before the first day of January, the year following the
year in which the secretary of labor approves for the first time
an unemployment insurance law submitted to him by the VirginIslands for approval) in the employ of an American employer
(other than service which is considered "employment" under the
provisions of subdivision (4), (5) or (6) of this definition of
"employment" or the parallel provisions of another state's law)
if:
(a) The employer's principal place of business in the United
States is located in this state; or
(b) The employer has no place of business in the United
States, but (i) the employer is an individual who is a resident
of this state; or (ii) the employer is a corporation which is
organized under the laws of this state; or (iii) the employer is
a partnership or a trust and the number of the partners or
trustees who are residents of this state is greater than the
number who are residents of any one other state; or
(c) None of the criteria of subparagraphs (a) and (b) of
this subdivision (11) is met but the employer has elected
coverage in this state or, the employer having failed to elect
coverage in any state, the individual has filed a claim for
benefits, based on such service, under the law of this state.
An "American employer", for purposes of this subdivision
(11), means a person who is (i) an individual who is a resident
of the United States; or (ii) a partnership if two thirds or more
of the partners are residents of the United States; or (iii) a
trust, if all of the trustees are residents of the United States;
or (iv) a corporation organized under the laws of the United
States or of any state;
(12) Service performed after the thirty-first day of
December, one thousand nine hundred seventy-seven, by anindividual in agricultural labor as defined in subdivision (5) of
the exclusions from employment in this section when:
(a) Such service is performed for a person who (i) during
any calendar quarter in either the current or the preceding
calendar year paid remuneration in cash of twenty thousand
dollars or more to individuals employed in agricultural labor
including labor performed by an alien referred to in paragraph
(b) of this subdivision (12); or (ii) for some portion of a day
in each of twenty different calendar weeks, whether or not such
weeks were consecutive, in either the current or the preceding
calendar year, employed in agricultural labor, including labor
performed by an alien referred to in paragraph (b) of this
subdivision (12), ten or more individuals, regardless of whether
they were employed at the same moment of time;
(b) Such service is not performed in agricultural labor if
performed before the first day of January, one thousand nine
hundred ninety-five, by an individual who is an alien admitted to
the United States to perform service in agricultural labor
pursuant to sections 214 (c) and 101 (a) (15) (H) of the
Immigration and Nationality Act;
(c) For the purposes of the definition of employment, any
individual who is a member of a crew furnished by a crew leader
to perform service in agricultural labor for any other person
shall be treated as an employee of such crew leader: (i) If such
crew leader holds a valid certificate of registration under the
Migrant and Seasonal Agricultural Worker Protection Act; or
substantially all the members of such crew operate or maintain
tractors, mechanized harvesting or crop-dusting equipment, or anyother mechanized equipment, which is provided by such crew
leader; and (ii) if such individual is not an employee of such
other person within the meaning of subdivision (7) of the
definition of employer;
(d) For the purposes of this subdivision (12), in the case
of any individual who is furnished by a crew leader to perform
service in agricultural labor for any other person and who is not
treated as an employee of such crew leader under subparagraph (c)
of this subdivision (12): (i) Such other person and not the crew
leader shall be treated as the employer of such individual; and
(ii) such other person shall be treated as having paid cash
remuneration to such individual in an amount equal to the amount
of cash remuneration paid to such individual by the crew leader
(either on his own behalf or on behalf of such other person) for
the service in agricultural labor performed for such other
person; and
(e) For the purposes of this subdivision (12), the term
"crew leader" means an individual who: (i) Furnishes individuals
to perform service in agricultural labor for any other person;
(ii) pays (either on his own behalf or on behalf of such other
person) the individuals so furnished by him for the service in
agricultural labor performed by them, and (iii) has not entered
into a written agreement with such other person under which such
individual is designated as an employee of such other person;
(13) The term "employment" includes domestic service after
the thirty-first day of December, one thousand nine hundred
seventy-seven, in a private home, local college club or local
chapter of a college fraternity or sorority performed for aperson who paid cash remuneration of one thousand dollars or more
after the thirty-first day of December, one thousand nine hundred
seventy-seven, in any calendar quarter in the current calendar
year or the preceding calendar year to individuals employed in
such domestic service.
Notwithstanding the foregoing definition of "employment", if
the services performed during one half or more of any pay period
by an employee for the person employing him constitute
employment, all the services of such employee for such period are
employment; but if the services performed during more than one
half of any such pay period by an employee for the person
employing him do not constitute employment, then none of the
services of such employee for such period are employment.
The term "employment" does not include:
(1) Service performed in the employ of this state or any
political subdivision thereof, or any instrumentality of this
state or its subdivisions, except as otherwise provided herein
until the thirty-first day of December, one thousand nine hundred
seventy-seven;
(2) Service performed directly in the employ of another
state, or its political subdivisions, except as otherwise
provided in paragraph (a), subdivision (9) of the definition of
"employment", until the thirty-first day of December, one
thousand nine hundred seventy-seven;
(3) 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 theUnited States shall permit 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 shall be applicable to such
instrumentalities and to service performed for such
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 shall not
be certified for any year by the secretary of labor under section
1603 (c) of the federal Internal Revenue Code, the payments
required of such instrumentalities with respect to such 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;
(4) Service performed after the thirtieth day of June, one
thousand nine hundred thirty-nine, 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 such 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 shallbecome effective ten days after such publications which shall
comply with the general rules of the department;
(5) Service performed by an individual in agricultural
labor, except as provided in subdivision (12) of the definition
of "employment" in this section. For purposes of this
subdivision (5), 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 such 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
such 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, 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
such operator produced more than one half of the commodity with
respect to which such service is performed; or (ii) in the employ
of a group of operators of farms (or a cooperative organization
of which such operators are members) in the performance of
service described in clause (i), but only if such operators
produced more than one half of the commodity with respect to
which such service is performed; but the provisions of clauses
(i) and (ii) 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 such 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 (5), 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;
(6) Domestic service in a private home except as provided in
subdivision (13) of the definition of "employment" in this
section;
(7) Service performed by an individual in the employ of his
son, daughter or spouse;
(8) Service performed by a child under the age of eighteen
years in the employ of his father or mother;
(9) Service as an officer or member of a crew of an American
vessel, performed on or in connection with such 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;
(10) 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;
(11) Service performed: (i) 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 (ii) by a
duly ordained, commissioned or licensed minister of a church in
the exercise of his ministry or by a member of a religious order
in the exercise of duties required by such order; or (iii) prior
to the first day of January, one thousand nine hundred seventy-
eight, in the employ of a school which is not an institution of
higher education; or (iv) in a facility conducted for the purpose
of carrying out a program of rehabilitation for individuals whose
earning capacity is impaired by age or physical or mental
deficiency or injury or providing remunerative work for
individuals who because of their impaired physical or mental
capacity cannot be readily absorbed in the competitive labormarket by an individual receiving such rehabilitation or
remunerative work; or (v) 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 such work relief
or work training; or (vi) prior to the first day of January, one
thousand nine hundred seventy-eight, for a hospital in a state
prison or other state correctional institution by an inmate of
the prison or correctional institution, and after the thirty-
first day of December, one thousand nine hundred seventy-seven,
by an inmate of a custodial or penal institution;
(12) Service performed in the employ of a school, college or
university, if such service is performed: (i) By a student who is
enrolled and is regularly attending classes at such school,
college or university, or (ii) by the spouse of such a student,
if such spouse is advised, at the time such spouse commences to
perform such service, that: (I) The employment of such spouse to
perform such service is provided under a program to provide
financial assistance to such student by such school, college or
university; and (II) such employment will not be covered by any
program of unemployment insurance;
(13) 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 such institution, which
combines academic instruction with work experience, if suchservice is an integral part of such program, and such institution
has so certified to the employer, except that this subdivision
shall not apply to service performed in a program established for
or on behalf of an employer or group of employers;
(14) Service performed in the employ of a hospital, if such
service is performed by a patient of the hospital, as defined in
this section; and
(15) Service in the employ of a governmental entity referred
to in subdivision (9) of the definition of "employment" in this
section if such service is performed by an individual in the
exercise of duties (i) as an elected official; (ii) as a member
of a legislative body, or a member of the judiciary, of a state
or political subdivision; (iii) as a member of the state national
guard or air national guard; (iv) as an employee serving on a
temporary basis in case of fire, storm, snow, earthquake, flood
or similar emergency; (v) 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.
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
such 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 creditagainst the tax imposed by the Federal Unemployment Tax Act are
required to be covered under this chapter.
"Employment office" means a free employment office or branch
thereof, operated by this state, or any free public employment
office maintained as a part of a state controlled system of
public employment offices in any other state.
"Fund" means the unemployment compensation fund established
by this chapter.
"Hospital" means an institution which has been licensed,
certified or approved by the state department of health as a
hospital.
"Institution of higher education" means an educational
institution which:
(1) Admits as regular students only individuals having a
certificate of graduation from a high school, or the recognized
equivalent of such a certificate;
(2) Is legally authorized in this state to provide a program
of education beyond high school;
(3) Provides an educational program for which it awards a
bachelor's or higher degree, or provides a program which is
acceptable for full credit toward such a degree, or provides a
program of post-graduate or post-doctoral studies, or provides a
program of training to prepare students for gainful employment in
a recognized occupation; and
(4) Is a public or other nonprofit institution.
Notwithstanding any of the foregoing provisions of this
definition all colleges and universities in this state are
institutions of higher education for purposes of this section.
"Payments" means the money required to be paid or that may
be voluntarily paid into the state unemployment compensation fund
as provided in article five of this chapter.
"Separated from employment" means, for the purposes of this
chapter, the total severance, whether by quitting, discharge or
otherwise, of the employer-employee relationship.
"State" includes, in addition to the states of the United
States, Puerto Rico, District of Columbia and the Virgin Islands.
"Total and partial unemployment" means:
(1) An individual is totally unemployed in any week in which
such individual is separated from employment for an employing
unit and during which he performs no services and with respect to
which no wages are payable to him.
(2) An individual who has not been separated from employment
is partially unemployed in any week in which due to lack of full-
time work wages payable to him are less than his weekly benefit
amount plus twenty-five dollars:
Provided,
That said individual
must have earnings of at least twenty-six dollars.
"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:
Provided,
That the term "wages" does not include:
(1) That part of the remuneration which, after remunerationequal to three thousand dollars has been paid to an individual by
an employer with respect to employment during any calendar year,
is paid after the thirty-first day of December, one thousand nine
hundred thirty-nine, and prior to the first day of January, one
thousand nine hundred forty-seven, to such individual by such
employer with respect to employment during such calendar year; or
that part of the remuneration which, after remuneration equal to
three thousand dollars with respect to employment after the year
one thousand nine hundred thirty-eight, has been paid to an
individual by an employer during any calendar year after one
thousand nine hundred forty-six, is paid to such individual by
such employer during such calendar year, 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 computation of base period wages:
Provided,
That
notwithstanding the foregoing provisions, on and after the first
day of January, one thousand nine hundred sixty-two, the term
"wages" does not include:
That part of the remuneration which, after remuneration
equal to three thousand six hundred dollars has been paid to an
individual by an employer with respect to employment during any
calendar year, is paid during any calendar year after one
thousand nine hundred sixty-one; and shall not include that part
of remuneration which, after remuneration equal to four thousand
two hundred dollars is paid during a calendar year after one
thousand nine hundred seventy-one; and shall not include that
part of remuneration which, after remuneration equal to sixthousand dollars is paid during a calendar year after one
thousand nine hundred seventy-seven; and shall not include that
part of remuneration which, after remuneration equal to eight
thousand dollars is paid during a calendar year after one
thousand nine hundred eighty, to an individual by an employer or
his 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 subdivision (1), 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 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 three thousand six hundred
dollars or four thousand two hundred dollars or six thousand
dollars or eight thousand dollars herein referred to. In
applying such limitation on the amount of remuneration that istaxable, 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:
(a) Effective prior to the first day of January, one thousand
nine hundred sixty-two, to include remuneration in excess of
three thousand dollars, or (b) effective on or after the first
day of January, one thousand nine hundred sixty-two, to include
remuneration in excess of three thousand six hundred dollars, or
(c) effective on or after the first day of January, one thousand
nine hundred seventy-two, to include remuneration in excess of
four thousand two hundred dollars; or (d) effective on or after
the first day of January, one thousand nine hundred seventy-
eight, to include remuneration in excess of six thousand dollars;
or (e) effective on or after the first day of January, one
thousand nine hundred eighty, 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 article or his 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 after the thirty-first
day of December, one thousand nine hundred fifty-two (including
any amount paid by an employer for insurance or annuities, orinto a fund, to provide for any such payment), to, or on behalf
of, an individual in its employ or any of his 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 after the thirty-first day of December,
one thousand nine hundred fifty-two, 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 after the thirty-first day of December,
one thousand nine hundred fifty-two, 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 after the thirty-first day of December,
one thousand nine hundred fifty-two, by an employer to, or on
behalf of, an individual in its employ or his 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 RevenueCode 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 after the thirty-first
day of December, one thousand nine hundred fifty-two, 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 after the thirty-first day of December, one thousand
nine hundred fifty-two, to an individual in its employ after the
month in which he attains the age of sixty-five, if he 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 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 partiallyunemployed shall not be interpreted to 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.
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.
"Week" means a calendar week, ending at midnight Saturday,
or the equivalent thereof, as determined in accordance with the
regulations prescribed by the commissioner.
"Weekly benefit rate" means the maximum amount of benefit an
eligible individual will receive for one week of total
unemployment.
"Year" means a calendar year or the equivalent thereof, as
determined by the commissioner.
ARTICLE 6A. EXTENDED BENEFITS PROGRAM.
§21A-6A-1. Definitions.
As used in this article, unless the context clearly requires
otherwise:
(1) "Extended benefit period" means a period which:
(A) Begins with the third week after a week for which there
is a state "on" indicator; and
(B) Ends with either of the following weeks, whichever
occurs later:
(i) The third week after the first week for which there is
a state "off" indicator; or
(ii) The thirteenth consecutive week of such period.
Notwithstanding the foregoing provisions of this section, no
extended benefit period may begin by reason of a state "on"
indicator before the fourteenth week following the end of a prior
extended benefit period which was in effect with respect to this
state, and no extended benefit period may become effective in
this state prior to the sixty-first day following the date of
enactment of the Federal-State Extended Unemployment Compensation
Act of 1970, and, within the period beginning on such sixty-first
day and ending on December thirty-one, one thousand nine hundred
seventy-one, an extended benefit period may become effective and
be terminated in this state solely by reason of a state "on" and
state "off" indicator, respectively.
(2) There is a "state 'on' indicator" for this state for a
week if the commissioner determines, in accordance with the
regulations of the United States secretary of labor, that for the
period consisting of such week and the immediately preceding
twelve weeks, the rate of insured unemployment (not seasonally
adjusted) under this article:
(A) Equaled or exceeded one hundred twenty percent of the
average of such rates for the corresponding thirteen-week periodending in each of the preceding two calendar years, and
(B) Equaled or exceeded four percent.
(C) The determination of whether there has been a state "on"
indicator beginning any extended benefit period shall be made
hereunder as if subsection (2) did not contain paragraph (A)
thereof, but only if the commissioner determines that the rate of
insured unemployment (not seasonally adjusted) equals or exceeds
five percent.
(3) After the twenty-fifth day of September, one thousand
nine hundred eighty-two, there is a "state 'on' indicator" for
this state for a week if the commissioner determines, in
accordance with the regulations of the United States secretary of
labor, that for the period consisting of such week and the
immediately preceding twelve weeks, the rate of insured
unemployment (not seasonally adjusted) under this article:
(A) Equaled or exceeded one hundred twenty percent of the
average of such rates for the corresponding thirteen-week period
ending in each of the preceding two calendar years, and
(B) Equaled or exceeded five percent.
(C) An extended benefit period shall be made hereunder as if
subsection (3) did not contain paragraph (A) thereof, but only if
the commissioner determines that the rate of insured unemployment
(not seasonally adjusted) equals or exceeds six percent.
(4) There is a state "off" indicator for a week if, for the
period consisting of such week and the immediately preceding
twelve weeks, either subsection (2) or (3) were not satisfied.
(5) "Rate of insured unemployment," for purposes of
subdivisions (2) and (3) of this section, means the percentagederived by dividing:
(A) The average weekly number of individuals filing claims
for regular compensation in this state for weeks of unemployment
with respect to the most recent thirteen-consecutive-week period,
as determined by the commissioner on the basis of his reports to
the United States secretary of labor, by
(B) The average monthly employment covered under this
chapter for the first four of the most recent six completed
calendar quarters ending before the end of such thirteen-week
period.
(6) "Regular benefits" means benefits payable to an
individual under this chapter or under any other state law
(including benefits payable to federal civilian employees and to
ex-servicemen pursuant to 5 U.S.C., chapter 85) other than
extended benefits.
(7) "Extended benefits" means benefits (including benefits
payable to federal civilian employees and to ex-servicemen
pursuant to 5 U.S.C., chapter 85) payable to an individual under
the provisions of this article for weeks of unemployment in his
eligibility period.
(8) "Eligibility period" of an individual means the period
consisting of the weeks in his benefit year which begin in an
extended benefit period and, if his benefit year ends within such
extended benefit period, any weeks thereafter which begin in such
period.
(9) "Exhaustee" means an individual who, with respect to any
week of unemployment in his eligibility period:
(A) Has received, prior to such week, all of the regularbenefits which were available to him under this chapter or any
other state law (including dependents' allowances and benefits
payable to federal civilian employees and ex-servicemen under 5
U.S.C., chapter 85) in his current benefit year that includes
such week:
Provided,
That for the purposes of this subdivision,
an individual shall be deemed to have received all of the regular
benefits which were available to him although (i) as a result of
a pending appeal with respect to wages and/or employment which
were not considered in the original monetary determination in his
benefit year, he may subsequently be determined to be entitled to
added regular benefits, or (ii) he may be entitled to regular
benefits with respect to future weeks of unemployment, but such
benefits are not payable with respect to such week of
unemployment by reason of the provisions of section one-a,
article six of this chapter; or
(B) His benefit year having expired prior to such week, has
no, or insufficient, wages and/or employment on the basis of
which he could establish a new benefit year which would include
such week; and
(C) Has no right to unemployment benefits or allowances, as
the case may be, under the Railroad Unemployment Insurance Act,
the Trade Expansion Act of 1962, the Automotive Products Trade
Act of 1965 and such other federal laws as are specified in
regulations issued by the United States secretary of labor; and
has not received and is not seeking unemployment benefits under
the unemployment compensation law of the Virgin Islands or of
Canada; but if he is seeking such benefits and the appropriate
agency finally determines that he is not entitled to benefitsunder such law he is considered an exhaustee.
(10) "State law" means the unemployment insurance law of any
state, approved by the United States secretary of labor under
section 3304 of the Internal Revenue Code of 1954.
(11) No individual shall be entitled to extended benefits
during a period of unemployment if he was disqualified under the
provisions of subdivision (1),(2) or (3) of section three,
article six of this chapter, which disqualification shall not be
terminated until such individual has returned to covered
employment and has been employed in covered employment for at
least thirty working days.
(12) (A) Notwithstanding any other provisions of this
section, an individual shall be ineligible for payment of
extended benefits for any week of unemployment in his eligibility
period if the commissioner finds that during such period:
(i) He failed to accept any offer of suitable work or failed
to apply for any suitable work (as defined under subdivision (12)
(C) of this section), to which he was referred by the
commissioner; or
(ii) He failed to actively engage in seeking work as
prescribed under subdivision (12) (E) of this section.
(B) Any individual who has been found ineligible for
extended benefits by reason of the provisions in subdivision (12)
(A) of this section shall also be denied benefits beginning with
the first day of the week following the week in which such
failure occurred and until he has been employed in each of four
subsequent weeks (whether or not consecutive) and has earned
remuneration equal to not less than four times the extendedweekly benefit amount;
(C) For purposes of this subdivision (12) (A) (i) of this
section, the term "suitable work" means, with respect to any
individual, any work which is within such individual's
capabilities:
Provided,
That the gross average weekly
remuneration payable for the work must exceed the sum of:
(i) The individual's average weekly benefit amount (as
determined under subdivision (12) (D) of this section) plus;
(ii) The amount, if any, of supplemental unemployment
benefits (as defined in section 501 (c) (17) (D) of the Internal
Revenue Code of 1954) payable to such individual for such week;
and further,
(iii) Pays wages equal to the higher of:
(I) The minimum wages provided by section (6) (a) (1) of the
Fair Labor Standards Act of 1938, without regard to any
exemption; or
(II) The state or local minimum wage;
(iv) Provided that no individual shall be denied extended
benefits for failure to accept an offer or referral to any job
which meets the definition of suitability as described above if:
(I) The position was not offered to such individual in
writing and was not listed with the employment service; or
(II) Such failure could not result in a denial of benefits
under the definition of suitable work for regular benefit
claimants in section five, article six of this chapter, to the
extent that the criteria of suitability in that section are not
inconsistent with the provisions of this subdivision (12) (C) of
this section; or
(III) The individual furnishes satisfactory evidence to the
commissioner that his or her prospects for obtaining work in his
or her customary occupation within a reasonably short period are
good. If such evidence is deemed satisfactory for this purpose,
the determination of whether any work is suitable with respect to
such individual shall be made in accordance with the definition
of suitable work in section five, article six of this chapter,
without regard to the definition specified by subdivision (12)
(C) of this section.
(D) Notwithstanding the provisions of this section to the
contrary, no work shall be deemed to be suitable work for an
individual which does not accord with the labor standard
provisions required by section 3304(a)(5) of the Internal Revenue
Code of 1954 and set forth herein under subdivision (12) (C)
(iii) (I) of this section.
(E) For the purposes of subdivision (12) (A) (ii) of this
section an individual shall be treated as actively engaged in
seeking work during any week if:
(i) The individual has engaged in a systematic and sustained
effort to obtain work during such week, and
(ii) The individual furnishes tangible evidence that he has
engaged in such effort during such week.
(F) The employment service shall refer any claimant entitled
to extended benefits under this article to any suitable work
which meets the criteria prescribed in subdivision (12) (C) of
this section.
(G) An individual shall not be eligible to receive extended
benefits with respect to any week of unemployment in hiseligibility period if such individual has been disqualified for
regular benefits under this chapter because he or she voluntarily
left work, was discharged for misconduct or refused an offer of
suitable work unless the disqualification imposed for such
reasons has been terminated in accordance with specific
conditions established under this subdivision requiring the
individual to perform service for remuneration subsequent to the
date of such disqualification.
(13) Notwithstanding any other provisions of this chapter,
if the benefit year of any individual ends within an extended
benefit period, the remaining balance of extended benefits that
such individual would, but for this section, be entitled to
receive in that extended benefit period, with respect to weeks of
unemployment beginning after the end of the benefit year, shall
be reduced (but not below zero) by the product of the number of
weeks for which the individual received any amounts as trade
readjustment allowances within that benefit year, multiplied by
the individual's weekly benefit amount for extended benefits.
(14) An unemployed individual shall be eligible to receive
benefits with respect to any week only if it has been found that
he has been paid wages by an employer who was subject to the
provisions of this chapter during the base period of his current
benefit year in an amount at least equal to forty times his
benefit rate for total unemployment.
(15) The provisions of subdivisions (11) and (12) of this
section shall not apply at any time should such provisions be
temporarily or permanently suspended by federal law. If these
provisions are suspended by federal law, the provisions of statelaw which apply to claims for and the payment of regular benefits
shall apply to claims for and the payment of extended benefits.