H. B. 4558
(By Delegates Shott, Fragale and Porter)
[Introduced February 18, 2010
; referred to the
Committee on Energy, Industry and Labor, Economic Development and
Small Business then the Judiciary.]
A BILL to amend
to amend and reenact
§21A-1A-17
of the Code of West
Virginia, 1931, as amended,
relating to exclusions from the
term employment in that article generally.
Be it enacted by the Legislature of West Virginia:
That §21A-1A-17 of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
ARTICLE 1A. LABOR-MANAGEMENT RELATIONS ACT FOR THE PRIVATE SECTOR.
§21A-1A-17. Exclusions from employment.
Notwithstanding any provision of section sixteen of this
article to the contrary, 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 by an agent of a person engaged in the
practice of real estate brokerage who is compensated wholly on a
commission basis;
(10) Service performed by an individual in connection with the
sale of consumer products (or the solicitation of the sale of
consumer products) in a residence or other place that is not a
permanent commercial establishment performed under a written
contract between the individual and the person for whom such
individual performs such services, which contract provides: (A) That such individual will not be treated as an employee for federal
tax purposes; and (B) that substantially all of such individual's
compensation is directly related to sales or other output (including
the performance of services) rather than to the number of hours
worked;
(11) 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;
(12) 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;
(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 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;
(14) Service performed in the employ of a hospital, if the
service is performed by a patient of the hospital, as defined in this article;
(15) 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; or (F) as any
election official appointed to serve during any municipal, county
or state election, if the amount of remuneration received by the
individual during the calendar year for services as an election
official is less than $1,000;
(16) Service performed by a bona fide partner of a partnership
for the partnership; and
(17) 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.
NOTE: The purpose of this bill is to make certain
clarifications of the definition of the term employment as contained
in this article.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.