2023 -- H 5989

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LC002387

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- EMPLOYMENT SECURITY --

GENERAL PROVISIONS

     

     Introduced By: Representatives McEntee, Caldwell, O'Brien, Casimiro, Kazarian,
Spears, Fogarty, and Dawson

     Date Introduced: March 01, 2023

     Referred To: House Finance

     (Dept. of Labor and Training)

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 "Employment

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

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     28-42-3. Definitions.

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

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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 the individual’s base period by the

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number of that individual’s credit weeks within the individual’s 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 that

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

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

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

 

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

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

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

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

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

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     (4) “Benefit” means the money payable to an individual as compensation for the

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individual’s 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 benefits,

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as determined by § 28-44-9.

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     (6) “Benefit rate” means the money payable to an individual as compensation, as provided

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in chapters 42 — 44 of this title, for the individual’s wage losses with respect to any week of total

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unemployment.

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

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

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the first of which shall be the week containing the day as of which he or she first files a valid claim

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in accordance with regulations adopted as hereinafter prescribed; provided, that the benefit year

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

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quarter of the base period of a prior new claim previously filed by the individual. In no event shall

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a new benefit year begin prior to the Sunday next following the end of the old 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 amount,” effective July 6, 2014, means earnings by the individual in an

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

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     (11) “Credit week,” prior to July 1, 2012, means any week within an individual’s base

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

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hourly wage as defined in chapter 12 of this title for performing services in employment for one or

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more employers subject to chapters 42 — 44 of this title, and for the period July 1, 2012, through

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July 5, 2014, means any week within an individual’s base period in which that individual earned

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wages amounting to at least the individual’s weekly benefit rate for performing services in

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employment for one or more employers subject to chapters 42 — 44 of this title.

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

 

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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 the crew leader’s own behalf or on behalf of that other person) the

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individuals so furnished by the crew leader 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) under

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

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operator).

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     (13) “Director” means the head of the department of labor and training or the director’s

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authorized representative.

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     (14) “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 ($1,000)

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or more in any calendar quarter in the current calendar year, or the preceding calendar year, to

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individuals employed in that domestic service.

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     (15) “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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     (16) “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 that for some portion of a day on and after January 1, 1956, has,

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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 (14) of this section;

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

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

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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 fund;

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or which, as a condition for approval of chapters 42 — 44 of this title for full tax credit against the

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

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to that act, to be an “employer” under chapters 42 — 44 of this title.

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     (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,

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or trustee, or the legal representative of a deceased person, that has, or had, in the unit’s employ,

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

 

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be considered an employing unit only if the person for whom the domestic service was performed

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

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current calendar year, or the preceding calendar year, to individuals employed in that domestic

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service in that private home.

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

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

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or implied; provided, that service performed shall also be deemed to constitute employment for all

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the purposes of chapters 42 — 44 of this title if performed by an individual in the employ of a

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nonprofit organization as described in subdivision (25) of this section, except as provided in § 28-

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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 employment

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

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Unemployment Tax Act, is required to be covered under chapters 42 — 44 of this title;

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

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by sole proprietors (owners), partners in a partnership, limited liability company — single member

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

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partnership with the IRS.

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     (19) “Employment — Crew leader.” For the purposes of subdivision (12) of this section:

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

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

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

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

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crew operate or maintain tractors, mechanized harvesting, or crop-dusting equipment, or any other

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mechanized equipment that is provided by that crew leader; and

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

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subdivision (15) of this section; and

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     (ii) 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 the crew leader’s own behalf or on behalf of that other person) for the service in

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agricultural labor performed for that other person.

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     (20) “Employment office” means a free, public-employment office, or its branch, operated

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

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agency that the director may designate with the approval of the Social Security Administration.

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     (21) “Fund” means the employment security fund established by this chapter.

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     (22) “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 of

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

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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 program

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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 nonprofit 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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     (25) “Nonprofit organization” means an organization, or group of organizations, as defined

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

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

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any week of less than full-time work if the employee 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 the employee would be entitled

 

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if totally unemployed and eligible. For weeks beginning on or after May 23, 2021, through June

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30, 2023, an employee shall be deemed partially unemployed in any week of less than full-time

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work if the employee fails to earn wages for that week in an amount equal to or greater than one

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hundred and fifty percent (150%) of the weekly benefit rate for total unemployment to which the

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employee would be entitled if totally unemployed and eligible.

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     (ii) For the purposes of this subdivision and subdivision (28) of this section, “wages”

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

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benefit rate for total unemployment, rounded to the next lower multiple of one dollar ($1.00), to

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which the individual would be entitled if totally unemployed and eligible in any one week, and

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“services” includes only that part of any work for which remuneration in excess of one-fifth (1/5)

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of the 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 is payable; provided, that nothing contained in this paragraph shall permit any individual to

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whom remuneration is payable for any work performed in any week in an amount equal to or greater

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than his or her weekly benefit rate to receive benefits under this subdivision for that week.

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     (iii) Notwithstanding the foregoing, for weeks ending on or after May 23, 2021, through

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June 30, 2023, “wages” includes only that part of remuneration for any work that is in excess of

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fifty percent (50%) 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 and

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eligible in any one week, and “services” includes only that part of any work for which remuneration

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in excess of fifty percent (50%) of the weekly benefit rate for total unemployment, rounded to the

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

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unemployed and eligible in any one week is payable. Provided, that, during the period defined in

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this subdivision, nothing contained in this subdivision shall permit any individual to whom

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remuneration is payable for any work performed in any week in an amount equal to or greater than

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one hundred fifty percent (150%) of their weekly benefit rate to receive benefits under this

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subdivision for that week.

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     (iv) Notwithstanding anything contained to the contrary in this subdivision, “services,” as

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

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

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

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or assistance to needy individuals performing those services, or services performed by members of

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the national guard and organized reserves in carrying out their duties in weekly drills as members

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of those organizations. “Wages,” as used in this subdivision and in subdivision (28) of this section,

 

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does not include either remuneration received by needy individuals for rendering the

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aforementioned services when that remuneration is paid exclusively from funds made available for

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that purpose out of taxes collected by this state or any of its political subdivisions, or remuneration

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received from the federal government by members of the national guard and organized reserves, as

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drill pay, including longevity pay and allowances.

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     (27) “Payroll” means the total amount of all wages paid by the employer to the employer’s

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employees for employment.

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

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week in which the individual performs no services (as used in subdivision (26) of this section) and

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for which the individual earns no wages (as used in subdivision (26) of this section), and in which

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the individual cannot reasonably return to any self-employment in which the individual has

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customarily been engaged.

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     (29) “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 that 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 the

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individual’s employment from persons other than the individual’s employing unit shall be treated

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as wages paid by the individual’s employing unit. The reasonable cash value of remuneration paid

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in any medium other than cash, and the reasonable amount of gratuities, shall be estimated and

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

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subdivision and of §§ 28-43-1 — 28-43-8.1, 28-43-8.2 [repealed], 28-43-8.3, 28-43-8.4 [repealed],

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28-43-8.5 — 28-43-8.10, 28-43-11 [repealed], and 28-43-12 — 28-43-14, this term does not

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include:

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

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

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

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employer or the employer’s 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 §§ 28-43-1 —

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28- 43-14, “wages” includes the remuneration as previously set forth, up to an amount equal to the

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

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includes services constituting employment under any employment security law of another state or

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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 that makes provision for employees generally, or for a class or

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classes of employees (including any amount paid by an employer or an employee for insurance or

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

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the individual’s 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 the employee’s 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 the individual’s employment with

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that 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. § 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 the Internal Revenue Code [26 U.S.C. § 125].

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     (30) “Week” means the seven-day (7) 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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     SECTION 2. Section 28-44-7 of the General Laws in Chapter 28-44 entitled "Employment

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Security — Benefits" is hereby amended to read as follows:

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     28-44-7. Partial unemployment benefits.

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     For weeks beginning on or after July 1, 1983, an individual partially unemployed and

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eligible in any week shall be paid sufficient benefits with respect to that week, so that the

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individual’s week’s wages, rounded to the next higher multiple of one dollar ($1.00), as defined in

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§ 28-42-3(26), and the individual’s benefits combined will equal in amount the weekly benefit rate

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to which the individual would be entitled if totally unemployed in that week. For weeks beginning

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on or after May 23, 2021, through June 30, 2023, an individual partially unemployed and eligible

 

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in any week shall be paid benefits in an amount equal to the weekly benefit rate to which the

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individual would be entitled if totally unemployed in that week less any wages earned in that week,

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as defined in § 28-42-3(26), and the individual’s benefits combined may not exceed in amount one

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hundred and fifty percent (150%) of the individual’s weekly benefit rate.

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     SECTION 3. 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 -- EMPLOYMENT SECURITY --

GENERAL PROVISIONS

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     This act would eliminate the "until June 30, 2023" sunset on the increase in the total amount

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of earnings a partial-unemployment insurance claimant can receive before entirely disqualified for

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unemployment insurance benefits and the increase in the amount of earnings disregarded when

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calculating a weekly benefit rate.

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     This act would take effect upon passage.

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