2013 -- H 5645

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LC01328

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO LABOR AND LABOR RELATIONS - EMPLOYMENT SECURITY -

GENERAL PROVISIONS

     Introduced By: Representatives Morgan, Giarrusso, Chippendale, and Newberry

     Date Introduced: February 27, 2013

     Referred To: House Finance

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 28-42-3 of the General Laws in Chapter 28-42 entitled

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"Employment Security - General Provisions" is hereby amended to read as follows:

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     28-42-3. Definitions. -- The following words and phrases, as used in chapters 42 -- 44 of

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this title, have the following meanings unless the context clearly requires otherwise:

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      (1) "Administration account" means the employment security administration account

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established by this chapter;

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      (2) "Average weekly wage" means the amount determined by dividing the individual's

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total wages earned for service performed in employment within his or her base period by the

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number of that individual's credit weeks within his or her base period;

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      (3) "Base period", with respect to an individual's benefit year means the first four (4) of

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the most recently completed five (5) calendar quarters immediately preceding the first day of an

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individual's benefit year. For any individual's benefit year and for any individual deemed

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monetarily ineligible for benefits for the "base period" as defined in this subdivision, the

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department shall make a re-determination of entitlement based upon the alternate base period

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which consists of the last four (4) completed calendar quarters immediately preceding the first

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day of the claimant's benefit year. Notwithstanding anything contained to the contrary in this

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subdivision, the base period shall not include any calendar quarter previously used to establish a

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valid claim for benefits; provided, that notwithstanding any provision of chapters 42 -- 44 of this

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title to the contrary, for the benefit years beginning on or after October 4, 1992, whenever an

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individual who has received workers' compensation benefits is entitled to reinstatement under

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section 28-33-47, but the position to which reinstatement is sought does not exist or is not

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available, the individual's base period shall be determined as if the individual filed for benefits on

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the date of the injury;

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      (4) "Benefit" means the money payable to an individual as compensation for his or her

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wage losses due to unemployment as provided in these chapters;

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      (5) "Benefit credits" means the total amount of money payable to an individual as

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benefits, as determined by section 28-44-9;

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      (6) "Benefit rate" means the money payable to an individual as compensation, as

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provided in chapters 42 -- 44 of this title, for his or her wage losses with respect to any week of

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total unemployment;

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      (7) "Benefit year", with respect to any individual who does not already have a benefit

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year in effect, and who files a valid claim for benefits means fifty-two (52) consecutive calendar

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weeks, the first of which shall be the week containing the day as of which he or she first files a

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valid claim in accordance with regulations adopted as hereinafter prescribed; provided, that the

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benefit year shall be fifty-three (53) weeks if the filing of a new valid claim would result in

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overlapping any quarter of the base period of a prior new claim previously filed by the individual.

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In no event shall a new benefit year begin prior to the Sunday next following the end of the old

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benefit year;

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      (8) "Calendar quarter" means the period of three (3) consecutive calendar months ending

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March 31, June 30, September 30, and December 31; or the equivalent thereof in accordance with

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regulations as subsequently prescribed;

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      (9) "Contributions" means the money payments to the state employment security fund

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required by those chapters;

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      (10) "Credit week" means any week within an individual's base period in which that

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individual earned wages amounting to at least twenty (20) times the minimum hourly wage as

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defined in chapter 12 of this title for performing services in employment for one or more

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employers subject to chapters 42 -- 44 of this title;

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      (11) "Crew leader", for the purpose of subdivision (18) of this section, means an

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individual who:

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      (i) Furnishes individuals to perform service in agricultural labor for any other person;

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      (ii) Pays (either on his or her own behalf or on behalf of that other person) the

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individuals so furnished by him or her for the service in agricultural labor performed by them;

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and

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      (iii) Has not entered into a written agreement with that other person (farm operator)

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under which that individual (crew leader) is designated as an employee of that other person (farm

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operator).

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      (12) "Director" means the head of the department of labor and training or his or her

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authorized representative;

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      (13) "Domestic service employment". "Employment" includes domestic service in a

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private home performed for a person who paid cash remuneration of one thousand dollars

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($1,000) or more in any calendar quarter in the current calendar year or the preceding calendar

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year to individuals employed in that domestic service;

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      (14) "Employee" means any person who is or has been employed by an employer subject

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to those chapters and in employment subject to those chapters;

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      (15) "Employer" means:

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      (i) Any employing unit that was an employer as of December 31, 1955;

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      (ii) Any employing unit which for some portion of a day on and after January 1, 1956,

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has or had in employment within any calendar year one or more individuals; except, however, for

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"domestic service employment", as defined in subdivision (13) of this section;

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      (iii) For the effective period of its election pursuant to section 28-42-12, any other

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employing unit which has elected to become subject to chapters 42 -- 44 of this title;

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      (iv) Any employing unit not an employer by reason of any other paragraph of this

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subdivision for which, within either the current or preceding calendar year, service is or was

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performed with respect to which that employing unit is liable for any federal tax against which

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credit may be taken for contributions required to be paid into this state's employment security

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fund; or which, as a condition for approval of chapters 42 -- 44 of this title for full tax credit

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against the tax imposed by the Federal Unemployment Tax Act, 26 U.S.C. section 3301 et seq., is

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required, pursuant to that act, to be an "employer" under chapters 42 -- 44 of this title;

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      (16) "Employing unit" means any person, partnership, association, trust, estate, or

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corporation whether domestic or foreign, or its legal representative, trustee in bankruptcy,

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receiver, or trustee, or the legal representative of a deceased person, which has, or had in his or

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her employ one or more individuals. For the purposes of subdivision (13) of this section a private

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home shall be considered an employing unit only if the person for whom the domestic service

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was performed paid cash remuneration of one thousand dollars ($1,000) or more in any calendar

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quarter in the current calendar year or the preceding calendar year to individuals employed in that

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domestic service in that private home;

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      (17) (i) "Employment", subject to sections 28-42-4 -- 28-42-10, means service, including

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service in interstate commerce, performed for wages or under any contract of hire, written or oral,

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express or implied; provided, that service performed shall also be deemed to constitute

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employment for all the purposes of chapters 42 -- 44 of this title, if performed by an individual in

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the employ of a nonprofit organization as described in subdivision (24) of this section except as

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provided in section 28-42-8(7).

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      (ii) Notwithstanding any other provisions of this section, "Employment" also means

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service with respect to which a tax is required to be paid under any federal law imposing a tax

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against which credit may be taken for contributions required to be paid into this state's

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employment security fund or which as a condition for full tax credit against the tax imposed by

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the Federal Unemployment Tax Act is required to be covered under chapters 42 -- 44 of this title;

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      (18) "Employment -- Crew leader". For the purposes of subdivision (14) of this section:

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      (i) Any individual who is a member of a crew furnished by a crew leader to perform

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service in agricultural labor for any other person shall be treated as an employee of that crew

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leader if:

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      (A) That crew leader holds a valid certificate of registration under the Migrant and

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Seasonal Agricultural Worker Protection Act, 29 U.S.C. section 1801 et seq., or substantially all

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members of that crew operate or maintain tractors, mechanized harvesting, or crop-dusting

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equipment, or any other mechanized equipment, which is provided by that crew leader; and

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      (ii) That individual is not an employee of that other person within the meaning of

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subdivision (14) of this section; and

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      (iii) In the case of any individual who is furnished by a crew leader to perform service in

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agricultural labor for any other person and who is not treated as an employee of that crew leader:

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      (A) That other person and not the crew leader shall be treated as the employer of that

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individual; and

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      (B) That other person shall be treated as having paid cash remuneration to that individual

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in an amount equal to the amount of cash remuneration paid to that individual by the crew leader

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(either on his or her own behalf or on behalf of that other person) for the service in agricultural

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labor performed for that other person;

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      (19) "Employment office" means a free public employment office, or its branch,

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operated by the director or by this state as part of a system of free public employment offices, or

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any other agency that the director may designate with the approval of the Social Security

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Administration;

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      (20) "Fund" means the employment security fund established by this chapter;

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      (21) "Governmental entity" means state and local governments in this state and includes

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the following:

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      (i) The state of Rhode Island or any of its instrumentalities, or any political subdivision

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of the state or any of its instrumentalities;

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      (ii) Any instrumentality of more than one of these entities; or

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      (iii) Any instrumentality of any of these entities and one or more other states or political

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subdivisions;

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      (22) "Hospital" means an institution that has been licensed, certified, or approved by the

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department of health as a hospital;

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      (23) (i) "Institution of higher education" means an educational institution in this state

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which:

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      (A) Admits as regular students only individuals having a certificate of graduation from a

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high school, or the recognized equivalent of such certificate;

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      (B) Is legally authorized within this state to provide a program of education beyond high

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school;

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      (C) Provides:

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      (I) An educational program for which it awards a bachelor's or higher degree, or a

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program that is acceptable for full credit toward such a degree;

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      (II) A program of post-graduate or post-doctoral studies; or

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      (III) A program of training to prepare students for gainful employment in a recognized

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occupation; and

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      (D) Is a public or other non-profit institution.

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      (ii) Notwithstanding any of the preceding provisions of this subdivision, all colleges and

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universities in this state are institutions of higher education for purposes of this section;

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      (24) "Nonprofit organization" means an organization or group of organizations as

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defined in 26 U.S.C. section 501(c)(3) which is exempt from income tax under 26 U.S.C. section

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501(a);

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      (25) (i) "Partial unemployment". An employee shall be deemed partially unemployed in

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any week of less than full-time work if he or she fails to earn in wages for that week an amount

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equal to the weekly benefit rate for total unemployment to which he or she would be entitled if

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totally unemployed and eligible.

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      (ii) For the purposes of this subdivision and subdivision (27) of this section, "Wages"

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includes only that part of remuneration for any work, which is in excess of one-fifth ( 1/5) of the

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weekly benefit rate for total unemployment, rounded to the next lower multiple of one dollar

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($1.00), to which the individual would be entitled if totally unemployed and eligible in any one

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week, and "services" includes only that part of any work for which remuneration in excess of

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one-fifth ( 1/5) of the weekly benefit rate for total unemployment, rounded to the next lower

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multiple of one dollar ($1.00), to which the individual would be entitled if totally unemployed

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and eligible in any one week is payable; provided, that nothing contained in this paragraph shall

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permit any individual to whom remuneration is payable for any work performed in any week in

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an amount equal to or greater than his or her weekly benefit rate to receive benefits under this

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subdivision for that week.

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      (iii) Notwithstanding anything contained to the contrary in this subdivision, "Services",

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as used in this subdivision and in subdivision (27) of this section, does not include services

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rendered by an individual under the exclusive supervision of any agency of this state, or any of its

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political subdivisions, by which the services are required solely for the purpose of affording

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relief, support, or assistance to needy individuals performing those services, or services

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performed by members of the national guard and organized reserves in carrying out their duties in

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weekly drills as members of those organizations. "Wages", as used in this subdivision and in

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subdivision (27) of this section, does not include either remuneration received by needy

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individuals for rendering the aforementioned services when that remuneration is paid exclusively

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from funds made available for that purpose out of taxes collected by this state or any of its

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political subdivisions, or remuneration received from the federal government by members of the

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national guard and organized reserves, as drill pay, including longevity pay and allowances;

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      (26) "Payroll" means the total amount of all wages paid by the employer to his or her

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employees for employment;

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      (27) "Total unemployment." An individual shall be deemed totally unemployed in any

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week in which he or she performs no services (as used in subdivision (25) of this section) and for

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which he or she earns no wages (as used in subdivision (25) of this section), and in which he or

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she cannot reasonably return to any self-employment in which he or she has customarily been

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engaged;

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      (28) "Wages" means all remuneration paid for personal services on or after January 1,

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1940, including commissions and bonuses and the cash value of all remuneration paid in any

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medium other than cash, and all other remuneration which is subject to a tax under a federal law

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imposing a tax against which credit may be taken for contributions required to be paid into a state

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unemployment fund. Gratuities customarily received by an individual in the course of his or her

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employment from persons other than his or her employing unit shall be treated as wages paid by

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his or her employing unit. The reasonable cash value of remuneration paid in any medium other

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than cash, and the reasonable amount of gratuities, shall be estimated and determined in

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accordance with rules prescribed by the director; except that for the purpose of this subdivision

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and of sections 28-43-1 -- 28-43-14, this term does not include:

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      (i) That part of remuneration which is paid by an employer to an individual with respect

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to employment during any calendar year, after remuneration equal to the amount of the taxable

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wage base as determined in accordance with section 28-43-7 has been paid during that calendar

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year by the employer or his or her predecessor to that individual; provided, that if the definition of

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"Wages" as contained in the Federal Unemployment Tax Act is amended to include remuneration

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in excess of the taxable wage base for that employment, then, for the purposes of sections 28-43-1

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-- 28-43-14, "Wages" includes the remuneration as previously set forth up to an amount equal to

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the dollar limitation specified in the federal act. For the purposes of this subdivision,

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"Employment" includes services constituting employment under any employment security law of

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another state or of the federal government;

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      (ii) The amount of any payment made to, or on behalf of, an employee under a plan or

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system established by an employer which makes provision for his or her employees generally or

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for a class or classes of his or her employees (including any amount paid by an employer or an

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employee for insurance or annuities, or into a fund, to provide for any such payment), on account

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of:

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      (A) Retirement;

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      (B) Sickness or accident disability;

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      (C) Medical and hospitalization expenses in connection with sickness or accident

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disability; or

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      (D) Death; provided, that the employee has not the:

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      (I) Option to receive, instead of provision for that death benefit, any part of that payment

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or, if that death benefit is insured, any part of the premiums (or contributions to premiums) paid

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by his or her employer; and

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      (II) Right, under the provisions of the plan or system or policy of insurance providing for

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that death benefit, to assign that benefit, or to receive a cash consideration in lieu of that benefit

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either upon his or her withdrawal from the plan or system providing for that benefit or upon

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termination of the plan or system or policy of insurance, or of his or her employment with that

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employer.

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      (E) The payment by an employer (without deduction from the remuneration of the

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employee) of:

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      (I) The tax imposed upon an employee under 26 U.S.C. section 3101; or

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      (II) Any payment required from an employee under chapters 42 -- 44 of this title.

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      (iii) Any amount paid by an employee or an amount paid by an employer under a benefit

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plan organized under Section 125 of the Internal Revenue Code [26 U.S.C. section 125_.

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      (29) "Week" means the seven (7) day calendar week beginning on Sunday at 12:01 A.M.

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and ending on Saturday at 12:00 A.M. midnight.

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     (30) "Seasonal industry" means an industry which customarily lays off forty percent

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(40%) or more of its workers for at least three (3) consecutive month's during a regularly

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recurring period in each twelve (12) month period.

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     (31) "Seasonal employee" means an employee who earns forty-five percent (45%) or

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more of his or her base period wages through employment in a seasonal industry.

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     SECTION 2. Chapter 28-44 of the General Laws entitled "Employment Security -

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Benefits" is hereby amended by adding thereto the following section:

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     28-44-71. Seasonal employees. -- Benefits to seasonal employees employed in a

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seasonal industry shall be limited to unemployment occurring during the operating period of the

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seasonal industry.

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     SECTION 3. This act shall take effect upon passage.

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LC01328

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO LABOR AND LABOR RELATIONS - EMPLOYMENT SECURITY -

GENERAL PROVISIONS

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     This act would provide that unemployment benefits paid to seasonal employees

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employed in a seasonal industry would be limited to unemployment occurring during the

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operating period of the seasonal industry.

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     This act would take effect upon passage.

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LC01328

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