COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 497
(By Senator Unger)
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[Originating in the Committee on the Judiciary;
reported February 22, 2002.]
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A BILL to amend and reenact section seventeen, article one-a,
chapter twenty-one-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
excluding appointed election officials from eligibility for
unemployment compensation.
Be it enacted by the Legislature of West Virginia:
That section seventeen, 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 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; (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;
or (F) as any election official appointed to serve during any
municipal, county or state election;
(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.
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(NOTE: The purpose of this bill is to exclude appointed
election officials from eligibility for unemployment compensation.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)