2020 -- S 2576

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LC004191

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2020

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS

     Introduced By: Senators Quezada, Metts, Crowley, Cano, and Goodwin

     Date Introduced: February 25, 2020

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

     SECTION 1. Section 28-12-2 of the General Laws in Chapter 28-12 entitled "Minimum

Wages" is hereby amended to read as follows:

     28-12-2. Definitions.

     As used in this chapter:

     (1) "Advisory board" means a board created as provided in § 28-12-6;

     (2) "Commissioner" means the minimum-wage commissioner appointed by the director

of labor and training as chief of the division of labor standards;

     (3) "Director" means the director of labor and training, or his or her duly authorized

representative;

     (4) "Employ" means to suffer or to permit to work;

     (5) "Employee" includes any individual suffered or permitted to work by an employer;

means any person providing labor or services for remuneration, as opposed to an independent

contractor, unless the hiring entity can establish that all of the following conditions are satisfied:

     (i) The person is free from the control and direction of the hiring entity in connection

with the performance of the work, both under the contract for the performance of the work and in

fact;

     (ii) The person performs work that is outside the usual course of the hiring entity's

business; and

     (iii) The person is customarily engaged in an independently established trade, occupation,

or business of the same nature as that involved in the work performed.

     (6) "Employee" shall not include:

     (i) Any individual employed in domestic service or in or about a private home;

     (ii) Any individual employed by the United States;

     (iii) Any individual engaged in the activities of an educational, charitable, religious, or

nonprofit organization where the employer-employee relationship does not, in fact, exist, or

where the services rendered to the organizations are on a voluntary basis;

     (iv) Newspaper deliverers on home delivery, shoe shiners in shoe shine establishments,

caddies on golf courses, pin persons in bowling alleys, ushers in theatres;

     (v) Traveling salespersons or outside salespersons;

     (vi) Service performed by an individual in the employ of his or her son, daughter, or

spouse and service performed by a child under the age of twenty-one (21) in the employ of his or

her father or mother;

     (vii) Any individual employed between May 1 and October 1 in a resort establishment

that regularly serves meals to the general public and that is open for business not more than six

(6) months a year;

     (viii) Any individual employed by an organized camp that does not operate for more than

seven (7) months in any calendar year. However, this exemption does not apply to individuals

employed by the camp on an annual, full-time basis. "Organized camp" means any camp, except

a trailer camp, having a structured program including, but not limited to, recreation, education,

and religious, or any combination of these.

     (7) "Employer" includes any individual, partnership, association, corporation, business

trust, or any person, or group of persons, acting directly, or indirectly, in the interest of an

employer, in relation to an employee;

     (8) "Occupation" means any occupation, service, trade, business, industry, or branch or

group of industries or employment or class of employment in which individuals are gainfully

employed;

     (9) "Wage" means compensation due to an employee by reason of his or her employment.

     SECTION 2. Section 28-29-2 of the General Laws in Chapter 28-29 entitled "Workers'

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

     28-29-2. Definitions.

     In chapters 29 -- 38 of this title, unless the context otherwise requires:

     (1) "Department" means the department of labor and training.

     (2) "Director" means the director of labor and training or his or her designee unless

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specifically stated otherwise.

     (3)(i) "Earnings capacity" means the weekly straight time earnings which an employee

could receive if the employee accepted an actual offer of suitable alternative employment.

Earnings capacity can also be established by the court based on evidence of ability to earn,

including, but not limited to, a determination of the degree of functional impairment and/or

disability, that an employee is capable of employment. The court may, in its discretion, take into

consideration the performance of the employee's duty to actively seek employment in scheduling

the implementation of the reduction. The employer need not identify particular employment

before the court can direct an earnings capacity adjustment. In the event that an employee returns

to light duty employment while partially disabled, an earnings capacity shall not be set based

upon actual wages earned until the employee has successfully worked at light duty for a period of

at least thirteen (13) weeks.

     (ii) As used under the provisions of this title, "functional impairment" means an

anatomical or functional abnormality existing after the date of maximum medical improvement as

determined by a medically or scientifically demonstrable finding and based upon the Sixth (6th)

edition of the American Medical Association's Guide to the Evaluation of Permanent Impairment

or comparable publications of the American Medical Association.

     (iii) In the event that an employee returns to employment at an average weekly wage

equal to the employee's pre-injury earnings exclusive of overtime, the employee will be presumed

to have regained his/her earning capacity.

     (4) "Employee" means any person who has entered into the employment of or works

under contract of service or apprenticeship with any employer, except that in the case of a city or

town other than the city of Providence it shall only mean that class or those classes of employees

as may be designated by a city, town, or regional school district in a manner provided in this

chapter to receive compensation under chapters 29 -- 38 of this title. It also means any person

providing labor or services for remuneration, as opposed to an independent contractor, unless the

hiring entity can establish that all of the following conditions are satisfied:

     (i) The person is free from the control and direction of the hiring entity in connection

with the performance of the work, both under the contract for the performance of the work and in

fact;

     (ii) The person performs work that is outside the usual course of the hiring entity's

business; and

     (iii) The person is customarily engaged in an independently established trade, occupation,

or business of the same nature as that involved in the work performed. Any person employed by

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the state of Rhode Island, except for sworn employees of the Rhode Island State Police, or by the

Rhode Island Airport Corporation who is otherwise entitled to the benefits of chapter 19 of title

45 shall be subject to the provisions of chapters 29 -- 38 of this title for all case management

procedures and dispute resolution for all benefits. The term "employee" does not include any

individual who is a shareholder or director in a corporation, general or limited partners in a

general partnership, a registered limited liability partnership, a limited partnership, or partners in

a registered limited liability limited partnership, or any individual who is a member in a limited

liability company. These exclusions do not apply to shareholders, directors and members who

have entered into the employment of or who work under a contract of service or apprenticeship

within a corporation or a limited liability company. The term "employee" also does not include a

sole proprietor, independent contractor, or a person whose employment is of a casual nature, and

who is employed other than for the purpose of the employer's trade or business, or a person

whose services are voluntary or who performs charitable acts, nor shall it include the members of

the regularly organized fire and police departments of any town or city except for appeals from an

order of the retirement board filed pursuant to the provisions of Rhode Island general law § 45-

21.2-9; provided, however, that it shall include the members of the police and aircraft rescue and

firefighting (ARFF) units of the Rhode Island Airport Corporation. Whenever a contractor has

contracted with the state, a city, town, or regional school district any person employed by that

contractor in work under contract shall not be deemed an employee of the state, city, town, or

regional school district as the case may be. Any person who on or after January 1, 1999, was an

employee and became a corporate officer shall remain an employee, for purposes of these

chapters, unless and until coverage under this act is waived pursuant to subsection 28-29-8(b) or §

28-29-17. Any person who is appointed a corporate officer between January 1, 1999 and

December 31, 2001, and was not previously an employee of the corporation, will not be

considered an employee, for purposes of these chapters, unless that corporate officer has filed a

notice pursuant to § 28-29-19(c). In the case of a person whose services are voluntary or who

performs charitable acts, any benefit received, in the form of monetary remuneration or

otherwise, shall be reportable to the appropriate taxation authority but shall not be deemed to be

wages earned under contract of hire for purposes of qualifying for benefits under chapters 29 --

38 of this title. Any reference to an employee who had been injured shall, where the employee is

dead, include a reference to his or her dependents as defined in this section, or to his or her legal

representatives, or, where he or she is a minor or incompetent, to his or her conservator or

guardian. A "seasonal occupation" means those occupations in which work is performed on a

seasonal basis of not more than sixteen (16) weeks.

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     (5) "Employer" includes any person, partnership, corporation, or voluntary association,

and the legal representative of a deceased employer; it includes the state, and the city of

Providence. It also includes each city, town, and regional school district in the state that votes or

accepts the provisions of chapters 29 -- 38 of this title in the manner provided in this chapter or is

a party to an appeal from an order of the retirement board filed pursuant to the provisions of

Rhode Island general law § 45-21.2-9.

     (6) "General or special employer":

     (i) "General employer" includes but is not limited to temporary help companies and

employee leasing companies and means a person who for consideration and as the regular course

of its business supplies an employee with or without vehicle to another person.

     (ii) "Special employer" means a person who contracts for services with a general

employer for the use of an employee, a vehicle, or both.

     (iii) Whenever there is a general employer and special employer wherein the general

employer supplies to the special employer an employee and the general employer pays or is

obligated to pay the wages or salaries of the supplied employee, then, notwithstanding the fact

that direction and control is in the special employer and not the general employer, the general

employer, if it is subject to the provisions of the Workers' Compensation Act or has accepted that

Act, shall be deemed to be the employer as set forth in subdivision (5) of this section and both the

general and special employer shall be the employer for purposes of §§ 28-29-17 and 28-29-18.

     (iv) Effective January 1, 2003, whenever a general employer enters into a contract or

arrangement with a special employer to supply an employee or employees for work, the special

employer shall require an insurer generated insurance coverage certification, on a form prescribed

by the department, demonstrating Rhode Island workers' compensation and employer's liability

coverage evidencing that the general employer carries workers' compensation insurance with that

insurer with no indebtedness for its employees for the term of the contract or arrangement. In the

event that the special employer fails to obtain and maintain at policy renewal and thereafter this

insurer generated insurance coverage certification demonstrating Rhode Island workers'

compensation and employer's liability coverage from the general employer, the special employer

is deemed to be the employer pursuant to the provisions of this section. Upon the cancellation or

failure to renew, the insurer having written the workers' compensation and employer's liability

policy shall notify the certificate holders and the department of the cancellation or failure to

renew and upon notice, the certificate holders shall be deemed to be the employer for the term of

the contract or arrangement unless or until a new certification is obtained.

     (7)(i) "Injury" means and refers to personal injury to an employee arising out of and in

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the course of his or her employment, connected and referable to the employment.

     (ii) An injury to an employee while voluntarily participating in a private, group, or

employer-sponsored carpool, vanpool, commuter bus service, or other rideshare program, having

as its sole purpose the mass transportation of employees to and from work shall not be deemed to

have arisen out of and in the course of employment. Nothing in the foregoing provision shall be

held to deny benefits under chapters 29 -- 38 and chapter 47 of this title to employees such as

drivers, mechanics, and others who receive remuneration for their participation in the rideshare

program. Provided, that the foregoing provision shall not bar the right of an employee to recover

against an employer and/or driver for tortious misconduct.

     (8) "Maximum medical improvement" means a point in time when any medically

determinable physical or mental impairment as a result of injury has become stable and when no

further treatment is reasonably expected to materially improve the condition. Neither the need for

future medical maintenance nor the possibility of improvement or deterioration resulting from the

passage of time and not from the ordinary course of the disabling condition, nor the continuation

of a pre-existing condition precludes a finding of maximum medical improvement. A finding of

maximum medical improvement by the workers' compensation court may be reviewed only

where it is established that an employee's condition has substantially deteriorated or improved.

     (9) "Physician" means medical doctor, surgeon, dentist, licensed psychologist,

chiropractor, osteopath, podiatrist, or optometrist, as the case may be.

     (10) "Suitable alternative employment" means employment or an actual offer of

employment which the employee is physically able to perform and will not exacerbate the

employee's health condition and which bears a reasonable relationship to the employee's

qualifications, background, education, and training. The employee's age alone shall not be

considered in determining the suitableness of the alternative employment.

     (11) "Independent contractor" means a person who has filed a notice of designation as

independent contractor with the director pursuant to § 28-29-17.1 or as otherwise found by the

workers' compensation court.

     SECTION 3. Section 28-39-2 of the General Laws in Chapter 28-39 entitled "Temporary

Disability Insurance - General Provisions" is hereby amended to read as follows:

     28-39-2. Definitions.

     The following words and phrases, as used in chapters 39 -- 41 of this title, have the

following meanings unless the context clearly requires otherwise:

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

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

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number of that individual's credit weeks within the base period;

     (2) "Base period" with respect to an individual's benefit year when the benefit year begins

on or after October 7, 1990, means the first four (4) of the most recently completed five (5)

calendar quarters immediately preceding the first day of an individual's benefit year; provided,

that for any individual's benefit year when the benefit year begins on or after October 4, 1992,

and for any individual deemed monetarily ineligible for benefits under the "base period" as

defined in this subdivision, the department shall make a re-determination of entitlement based

upon an alternate base period which consists of the last four (4) completed calendar quarters

immediately preceding the first day of the claimant's benefit year. Notwithstanding anything

contained to the contrary in this subdivision, the base period shall not include any calendar

quarter previously used to establish a valid claim for benefits; provided, however, that the "base

period" with respect to members of the United States military service, the Rhode Island National

Guard, or a United States military reserve force, and who served in a United States declared

combat operation during their military service, who file a claim for benefits following their

release from their state or federal active military service and who are deemed to be monetarily

ineligible for benefits under this section, shall mean the first four (4) of the most recently

completed five (5) calendar quarters immediately preceding the first day the individual was called

into that state or federal active military service; provided, that for any individual deemed

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

department shall make a re-determination of entitlement based upon an alternative base period

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

day the claimant was called into that state or federal active military service. Notwithstanding any

provision of this section of the general or public laws to the contrary, the base period shall not

include any calendar quarter previously used to establish a valid claim for benefits;

     (3) "Benefit" means the money payable, as provided in chapters 39 -- 41 of this title, to

an individual as compensation for his or her unemployment caused by sickness;

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

benefits, as provided in § 28-41-7;

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

provided in chapters 39 -- 41 of this title, for his or her wage losses with respect to any week

during which his or her unemployment is caused by sickness;

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

in effect, and who files a valid claim for benefits as of November 16, 1958 or any later date,

means fifty-two (52) consecutive calendar weeks, the first of which shall be the week containing

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the day as of which he or she first files that valid claim in accordance with regulations adopted as

subsequently prescribed; provided, that for any benefit year beginning on or after October 7,

1990, the benefit year shall be fifty-three (53) consecutive calendar weeks if the subsequent filing

of a new valid claim immediately following the end of a previous benefit year would result in the

overlapping of any quarter of the base period of the prior new claim. In no event shall a new

benefit year begin prior to the Sunday next following the end of the old benefit year;

     (i) For benefit years that begin on or after July 1, 2012, an individual's benefit year will

begin on the Sunday of the calendar week in which an individual first became unemployed due to

sickness and for which the individual has filed a valid claim for benefits;

     (7) "Board" means the board of review as created under chapter 19 of title 42;

     (8) "Calendar quarter" has the same definition as contained in chapter 42 of this title;

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

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

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

employers subject to chapters 39 -- 41 of this title;

     (10) "Director" means the director of the department of labor and training;

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

to chapters 39 -- 41 of this title and in employment subject to those chapters; providing labor or

services for remuneration, as opposed to an independent contractor, unless the hiring entity can

establish that all of the following conditions are satisfied:

     (i) The person is free from the control and direction of the hiring entity in connection

with the performance of the work, both under the contract for the performance of the work and in

fact;

     (ii) The person performs work that is outside the usual course of the hiring entity's

business; and

     (iii) The person is customarily engaged in an independently established trade, occupation,

or business of the same nature as that involved in the work performed.

     (12) "Employer" means any employing unit that is an employer under chapters 42 -- 44

of this title;

     (13) "Employing unit" has the same definition as contained in chapter 42 of this title and

includes any governmental entity that elects to become subject to the provisions of chapters 39 --

41 of this title, in accordance with the provisions of §§ 28-39-3.1 and 28-39-3.2;

     (14) "Employment" has the same definition as contained in chapter 42 of this title;

     (15) "Employment office" has the same definition as contained in chapter 42 of this title;

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     (16) "Fund" means the Rhode Island temporary disability insurance fund established by

this chapter;

     (17) "Partial unemployment due to sickness". For weeks beginning on or after January 1,

2006 an individual shall be deemed partially unemployed due to sickness in any week of less than

full-time work if he or she fails to earn in wages for services for that week an amount equal to the

weekly benefit rate for total unemployment due to sickness to which he or she would be entitled

if totally unemployed due to sickness and eligible.

     (i) For the purposes of this subdivision and subdivision (22) of this section, "Wages"

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

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

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

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

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

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

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

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

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

subdivision for that week.

     (18) "Reserve fund" means the temporary disability insurance reserve fund established by

§ 28-39-7;

     (19) "Services" means all endeavors undertaken by an individual that are paid for by

another or with respect to which the individual performing the services expects to receive wages

or profits;

     (20) "Sickness". An individual shall be deemed to be sick in any week in which, because

of his or her physical or mental condition, including pregnancy, he or she is unemployed and

unable to perform his or her regular or customary work or services;

     (21)(i) "Taxes" means the money payments required by chapters 39 -- 41 of this title, to

be made to the temporary disability insurance fund or to the temporary disability insurance

reserve fund.

     (ii) Wherever and whenever in chapters 39 -- 41 of this title, the words "contribution"

and/or "contributions" appear, those words shall be construed to mean the "taxes," as defined in

this subdivision, which are the money payments required by those chapters to be made to the

temporary disability insurance fund or to the temporary disability insurance reserve fund;

     (22) "Wages" has the same definition as contained in chapter 42 of this title; provided,

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that no individual shall be denied benefits under chapters 39 -- 41 of this title because his or her

employer continues to pay to that individual his or her regular wages, or parts of them, while he

or she is unemployed due to sickness and unable to perform his or her regular or customary work

or services. The amount of any payments, whether or not under a plan or system, made to or on

behalf of an employee by his or her employer after the expiration of six (6) calendar months

following the last calendar month in which the employee performed actual bona fide personal

services for his or her employer, shall not be deemed to be wages either for the purpose of paying

contributions thereon under chapter 40 of this title, or for the purpose of being used as a basis for

paying benefits under chapter 41 of this title; and

     (23) "Week" has the same definition as contained in chapter 42 of this title.

     SECTION 4. Section 28-42-3 of the General Laws in Chapter 28-42 entitled

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

     28-42-3. Definitions.

     The following words and phrases, as used in chapters 42 -- 44 of this title, have the

following meanings unless the context clearly requires otherwise:

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

established by this chapter;

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

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

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

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

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

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

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

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

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

claimant's benefit year. Notwithstanding anything contained to the contrary in this subdivision,

the base period shall not include any calendar quarter previously used to establish a valid claim

for benefits; provided, that notwithstanding any provision of chapters 42 -- 44 of this title to the

contrary, for the benefit years beginning on or after October 4, 1992, whenever an individual who

has received workers' compensation benefits is entitled to reinstatement under § 28-33-47, but the

position to which reinstatement is sought does not exist or is not available, the individual's base

period shall be determined as if the individual filed for benefits on the date of the injury;

     (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;

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

benefits, as determined by § 28-44-9;

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

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

total unemployment;

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

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

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

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

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

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

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

benefit year;

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

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

with regulations as subsequently prescribed;

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

required by those chapters;

     (10) "Credit amount", effective July 6, 2014, means earnings by the individual in an

amount equal to at least eight (8) times the individual's weekly benefit rate.

     (11) "Credit week", prior to July 1, 2012, means any week within an individual's base

period in which that individual earned wages amounting to at least twenty (20) times the

minimum hourly wage as defined in chapter 12 of this title for performing services in

employment for one or more employers subject to chapters 42 -- 44 of this title, and for the period

July 1, 2012, through July 5, 2014, means any week within an individual's base period in which

that individual earned wages amounting to at least his or her weekly benefit rate for performing

services in employment for one or more employers subject to chapters 42 -- 44 of this title;

     (12) "Crew leader", for the purpose of subdivision (19) of this section, means an

individual who:

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

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

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

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

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

operator).

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

authorized representative;

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

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

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

year, to individuals employed in that domestic service;

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

subject to those chapters and in employment subject to those chapters; providing labor or services

for remuneration, as opposed to an independent contractor, unless the hiring entity can establish

that all of the following conditions are satisfied:

     (i) The person is free from the control and direction of the hiring entity in connection

with the performance of the work, both under the contract for the performance of the work and in

fact;

     (ii) The person performs work that is outside the usual course of the hiring entity's

business; and

     (iii) The person is customarily engaged in an independently established trade, occupation,

or business of the same nature as that involved in the work performed.

     (16) "Employer" means:

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

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

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

"domestic service employment", as defined in subdivision (14) of this section;

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

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

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

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

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

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

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

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

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

     (17) "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,

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

employ, one or more individuals. For the purposes of subdivision (14) of this section, a private

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

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

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

that domestic service in that private home;

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

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

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

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

the employ of a nonprofit organization as described in subdivision (25) of this section, except as

provided in § 28-42-8(7).

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

service with respect to which 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 this state's

employment security fund 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 chapters 42 -- 44 of this title;

     (iii) Employment not to include owners. Employment does not include services

performed by sole proprietors (owners), partners in a partnership, limited liability company --

single member filing as a sole proprietor with the IRS, or members of a limited liability company

filing as a partnership with the IRS.

     (19) "Employment -- Crew leader". For the purposes of subdivision (12) of this section:

     (i) 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 that crew

leader if:

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

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

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

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

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

subdivision (15) of this section; and

     (iii) 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 that crew leader:

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

individual; and

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

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

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

labor performed for that other person;

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

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

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

Administration;

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

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

the following:

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

the state, or any of its instrumentalities;

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

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

subdivisions;

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

department of health as a hospital;

     (24)(i) "Institution of higher education" means an educational institution in this state that:

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

high school, or the recognized equivalent of such certificate;

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

school;

     (C) Provides:

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

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

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

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

occupation; and

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

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

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

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

defined in 26 U.S.C. § 501(c)(3), that is exempt from income tax under 26 U.S.C. § 501(a);

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

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

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

totally unemployed and eligible.

     (ii) For the purposes of this subdivision and subdivision (28) of this section, "Wages"

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

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

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

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

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

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

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

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

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

subdivision for that week.

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

as used in this subdivision and in subdivision (28) of this section, does not include services

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

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

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

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

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

subdivision (28) of this section, does not include either remuneration received by needy

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

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

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

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

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

employees for employment;

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

week in which he or she performs no services (as used in subdivision (26) of this section) and for

which he or she earns no wages (as used in subdivision (26) 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

engaged;

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

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

medium other than cash, and all other remuneration that 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. Gratuities customarily received by an individual in the course of his or her

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

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

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

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

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

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

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

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

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

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

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

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

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

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

another state or of the federal government;

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

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

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

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

of:

     (A) Retirement;

     (B) Sickness or accident disability;

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

disability; or

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

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

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

LC004191 - Page 16 of 18

by his or her employer; and

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

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

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

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

employer.

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

employee) of:

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

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

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

plan organized under Internal Revenue Code [26 U.S.C. § 125].

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

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

     SECTION 5. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS

***

     This act would, for purposes of wages, workers' compensation, temporary disability and

unemployment insurance benefits, creates a new definition for the term "employee", which

assumes a worker to be an employee, as opposed to an independent contractor, unless three (3)

specific conditions are satisfied.

     This act would take effect upon passage.

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