2022 -- S 2861 | |
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LC003715 | |
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STATE OF RHODE ISLAND | |
IN GENERAL ASSEMBLY | |
JANUARY SESSION, A.D. 2022 | |
____________ | |
A N A C T | |
RELATING TO LABOR AND LABOR RELATIONS -- MINIMUM WAGES | |
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Introduced By: Senators Quezada, and Euer | |
Date Introduced: April 05, 2022 | |
Referred To: Senate Labor | |
It is enacted by the General Assembly as follows: | |
1 | SECTION 1. Section 28-12-2 of the General Laws in Chapter 28-12 entitled "Minimum |
2 | Wages" is hereby amended to read as follows: |
3 | 28-12-2. Definitions. |
4 | As used in this chapter: |
5 | (1) "Advisory board" means a board created as provided in § 28-12-6; |
6 | (2) "Commissioner" means the minimum-wage commissioner appointed by the director of |
7 | labor and training as chief of the division of labor standards; |
8 | (3) "Director" means the director of labor and training, or his or her duly authorized |
9 | representative; |
10 | (4) "Employ" means to suffer or to permit to work; |
11 | (5) "Employee" includes any individual suffered or permitted to work by an employer; |
12 | means any person providing labor or services for remuneration, as opposed to an independent |
13 | contractor, unless the hiring entity can establish that all of the following conditions are satisfied: |
14 | (i) The person is free from the control and direction of the hiring entity in connection with |
15 | the performance of the work, both under the contract for the performance of the work and in fact; |
16 | (ii) The person performs work that is outside the usual course of the hiring entity's business; |
17 | and |
18 | (iii) The person is customarily engaged in an independently established trade, occupation, |
19 | or business of the same nature as that involved in the work performed. |
| |
1 | (6) "Employee" shall not include: |
2 | (i) Any individual employed in domestic service or in or about a private home; |
3 | (ii) Any individual employed by the United States; |
4 | (iii) Any individual engaged in the activities of an educational, charitable, religious, or |
5 | nonprofit organization where the employer-employee relationship does not, in fact, exist, or where |
6 | the services rendered to the organizations are on a voluntary basis; |
7 | (iv) Newspaper deliverers on home delivery, shoe shiners in shoe shine establishments, |
8 | caddies on golf courses, pin persons in bowling alleys, ushers in theatres; |
9 | (v) Traveling salespersons or outside salespersons; |
10 | (vi) Service performed by an individual in the employ of his or her son, daughter, or spouse |
11 | and service performed by a child under the age of twenty-one (21) in the employ of his or her father |
12 | or mother; |
13 | (vii) Any individual employed between May 1 and October 1 in a resort establishment that |
14 | regularly serves meals to the general public and that is open for business not more than six (6) |
15 | months a year; |
16 | (viii) Any individual employed by an organized camp that does not operate for more than |
17 | seven (7) months in any calendar year. However, this exemption does not apply to individuals |
18 | employed by the camp on an annual, full-time basis. "Organized camp" means any camp, except a |
19 | trailer camp, having a structured program including, but not limited to, recreation, education, and |
20 | religious, or any combination of these. |
21 | (7) "Employer" includes any individual, partnership, association, corporation, business |
22 | trust, or any person, or group of persons, acting directly, or indirectly, in the interest of an employer, |
23 | in relation to an employee; |
24 | (8) "Occupation" means any occupation, service, trade, business, industry, or branch or |
25 | group of industries or employment or class of employment in which individuals are gainfully |
26 | employed; |
27 | (9) "Wage" means compensation due to an employee by reason of his or her employment. |
28 | SECTION 2. Section 28-29-2 of the General Laws in Chapter 28-29 entitled "Workers' |
29 | Compensation - General Provisions" is hereby amended to read as follows: |
30 | 28-29-2. Definitions. |
31 | In chapters 29 -- 38 of this title, unless the context otherwise requires: |
32 | (1) "Department" means the department of labor and training. |
33 | (2) "Director" means the director of labor and training or his or her designee unless |
34 | specifically stated otherwise. |
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1 | (3)(i) "Earnings capacity" means the weekly straight time earnings which an employee |
2 | could receive if the employee accepted an actual offer of suitable alternative employment. Earnings |
3 | capacity can also be established by the court based on evidence of ability to earn, including, but not |
4 | limited to, a determination of the degree of functional impairment and/or disability, that an |
5 | employee is capable of employment. The court may, in its discretion, take into consideration the |
6 | performance of the employee's duty to actively seek employment in scheduling the implementation |
7 | of the reduction. The employer need not identify particular employment before the court can direct |
8 | an earnings capacity adjustment. In the event that an employee returns to light duty employment |
9 | while partially disabled, an earnings capacity shall not be set based upon actual wages earned until |
10 | the employee has successfully worked at light duty for a period of at least thirteen (13) weeks. |
11 | (ii) As used under the provisions of this title, "functional impairment" means an anatomical |
12 | or functional abnormality existing after the date of maximum medical improvement as determined |
13 | by a medically or scientifically demonstrable finding and based upon the Sixth (6th) edition of the |
14 | American Medical Association's Guide to the Evaluation of Permanent Impairment or comparable |
15 | publications of the American Medical Association. |
16 | (iii) In the event that an employee returns to employment at an average weekly wage equal |
17 | to the employee's pre-injury earnings exclusive of overtime, the employee will be presumed to have |
18 | regained his/her earning capacity. |
19 | (4) "Employee" means any person who has entered into the employment of or works under |
20 | contract of service or apprenticeship with any employer, except that in the case of a city or town |
21 | other than the city of Providence it shall only mean that class or those classes of employees as may |
22 | be designated by a city, town, or regional school district in a manner provided in this chapter to |
23 | receive compensation under chapters 29 -- 38 of this title. It also means any person providing labor |
24 | or services for remuneration, as opposed to an independent contractor, unless the hiring entity can |
25 | establish that all of the following conditions are satisfied: |
26 | (i) The person is free from the control and direction of the hiring entity in connection with |
27 | the performance of the work, both under the contract for the performance of the work and in fact; |
28 | (ii) The person performs work that is outside the usual course of the hiring entity's business; |
29 | and |
30 | (iii) The person is customarily engaged in an independently established trade, occupation, |
31 | or business, of the same nature as that involved in the work performed. Any person employed by |
32 | the state of Rhode Island, except for sworn employees of the Rhode Island State Police, or by the |
33 | Rhode Island Airport Corporation who is otherwise entitled to the benefits of chapter 19 of title 45 |
34 | shall be subject to the provisions of chapters 29 -- 38 of this title for all case management procedures |
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1 | and dispute resolution for all benefits. The term "employee" does not include any individual who |
2 | is a shareholder or director in a corporation, general or limited partners in a general partnership, a |
3 | registered limited liability partnership, a limited partnership, or partners in a registered limited |
4 | liability limited partnership, or any individual who is a member in a limited liability company. |
5 | These exclusions do not apply to shareholders, directors and members who have entered into the |
6 | employment of or who work under a contract of service or apprenticeship within a corporation or |
7 | a limited liability company. The term "employee" also does not include a sole proprietor, |
8 | independent contractor, or a person whose employment is of a casual nature, and who is employed |
9 | other than for the purpose of the employer's trade or business, or a person whose services are |
10 | voluntary or who performs charitable acts, nor shall it include the members of the regularly |
11 | organized fire and police departments of any town or city except for appeals from an order of the |
12 | retirement board filed pursuant to the provisions of § 45-21.2-9; provided, however, that it shall |
13 | include the members of the police and aircraft rescue and firefighting (ARFF) units of the Rhode |
14 | Island Airport Corporation. Whenever a contractor has contracted with the state, a city, town, or |
15 | regional school district any person employed by that contractor in work under contract shall not be |
16 | deemed an employee of the state, city, town, or regional school district as the case may be. Any |
17 | person who on or after January 1, 1999, was an employee and became a corporate officer shall |
18 | remain an employee, for purposes of these chapters, unless and until coverage under this act is |
19 | waived pursuant to § 28-29-8(b) or § 28-29-17. Any person who is appointed a corporate officer |
20 | between January 1, 1999, and December 31, 2001, and was not previously an employee of the |
21 | corporation, will not be considered an employee, for purposes of these chapters, unless that |
22 | corporate officer has filed a notice pursuant to § 28-29-19(c). In the case of a person whose services |
23 | are voluntary or who performs charitable acts, any benefit received, in the form of monetary |
24 | remuneration or otherwise, shall be reportable to the appropriate taxation authority but shall not be |
25 | deemed to be wages earned under contract of hire for purposes of qualifying for benefits under |
26 | chapters 29 -- 38 of this title. Any reference to an employee who had been injured shall, where the |
27 | employee is dead, include a reference to his or her dependents as defined in this section, or to his |
28 | or her legal representatives, or, where he or she is a minor or incompetent, to his or her conservator |
29 | or guardian. A "seasonal occupation" means those occupations in which work is performed on a |
30 | seasonal basis of not more than sixteen (16) weeks. |
31 | (5) "Employer" includes any person, partnership, corporation, or voluntary association, and |
32 | the legal representative of a deceased employer; it includes the state, and the city of Providence. It |
33 | also includes each city, town, and regional school district in the state that votes or accepts the |
34 | provisions of chapters 29 -- 38 of this title in the manner provided in this chapter or is a party to an |
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1 | appeal from an order of the retirement board filed pursuant to the provisions of § 45-21.2-9. |
2 | (6) "General or special employer": |
3 | (i) "General employer" includes but is not limited to temporary help companies and |
4 | employee leasing companies and means a person who for consideration and as the regular course |
5 | of its business supplies an employee with or without vehicle to another person. |
6 | (ii) "Special employer" means a person who contracts for services with a general employer |
7 | for the use of an employee, a vehicle, or both. |
8 | (iii) Whenever there is a general employer and special employer wherein the general |
9 | employer supplies to the special employer an employee and the general employer pays or is |
10 | obligated to pay the wages or salaries of the supplied employee, then, notwithstanding the fact that |
11 | direction and control is in the special employer and not the general employer, the general employer, |
12 | if it is subject to the provisions of the Workers' Compensation Act or has accepted that Act, shall |
13 | be deemed to be the employer as set forth in subdivision (5) of this section and both the general |
14 | and special employer shall be the employer for purposes of §§ 28-29-17 and 28-29-18. |
15 | (iv) Effective January 1, 2003, whenever a general employer enters into a contract or |
16 | arrangement with a special employer to supply an employee or employees for work, the special |
17 | employer shall require an insurer generated insurance coverage certification, on a form prescribed |
18 | by the department, demonstrating Rhode Island workers' compensation and employer's liability |
19 | coverage evidencing that the general employer carries workers' compensation insurance with that |
20 | insurer with no indebtedness for its employees for the term of the contract or arrangement. In the |
21 | event that the special employer fails to obtain and maintain at policy renewal and thereafter this |
22 | insurer generated insurance coverage certification demonstrating Rhode Island workers' |
23 | compensation and employer's liability coverage from the general employer, the special employer |
24 | is deemed to be the employer pursuant to the provisions of this section. Upon the cancellation or |
25 | failure to renew, the insurer having written the workers' compensation and employer's liability |
26 | policy shall notify the certificate holders and the department of the cancellation or failure to renew |
27 | and upon notice, the certificate holders shall be deemed to be the employer for the term of the |
28 | contract or arrangement unless or until a new certification is obtained. |
29 | (7)(i) "Injury" means and refers to personal injury to an employee arising out of and in the |
30 | course of his or her employment, connected and referable to the employment. |
31 | (ii) An injury to an employee while voluntarily participating in a private, group, or |
32 | employer-sponsored carpool, vanpool, commuter bus service, or other rideshare program, having |
33 | as its sole purpose the mass transportation of employees to and from work shall not be deemed to |
34 | have arisen out of and in the course of employment. Nothing in the foregoing provision shall be |
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1 | held to deny benefits under chapters 29 -- 38 and chapter 47 of this title to employees such as |
2 | drivers, mechanics, and others who receive remuneration for their participation in the rideshare |
3 | program. Provided, that the foregoing provision shall not bar the right of an employee to recover |
4 | against an employer and/or driver for tortious misconduct. |
5 | (8) "Maximum medical improvement" means a point in time when any medically |
6 | determinable physical or mental impairment as a result of injury has become stable and when no |
7 | further treatment is reasonably expected to materially improve the condition. Neither the need for |
8 | future medical maintenance nor the possibility of improvement or deterioration resulting from the |
9 | passage of time and not from the ordinary course of the disabling condition, nor the continuation |
10 | of a preexisting condition precludes a finding of maximum medical improvement. A finding of |
11 | maximum medical improvement by the workers' compensation court may be reviewed only where |
12 | it is established that an employee's condition has substantially deteriorated or improved. |
13 | (9) "Physician" means medical doctor, surgeon, dentist, licensed psychologist, |
14 | chiropractor, osteopath, podiatrist, or optometrist, as the case may be. |
15 | (10) "Suitable alternative employment" means employment or an actual offer of |
16 | employment which the employee is physically able to perform and will not exacerbate the |
17 | employee's health condition and which bears a reasonable relationship to the employee's |
18 | qualifications, background, education, and training. The employee's age alone shall not be |
19 | considered in determining the suitableness of the alternative employment. |
20 | (11) "Independent contractor" means a person who has filed a notice of designation as |
21 | independent contractor with the director pursuant to § 28-29-17.1 or as otherwise found by the |
22 | workers' compensation court. |
23 | SECTION 3. Section 28-39-2 of the General Laws in Chapter 28-39 entitled "Temporary |
24 | Disability Insurance - General Provisions" is hereby amended to read as follows: |
25 | 28-39-2. Definitions. |
26 | The following words and phrases, as used in chapters 39 -- 41 of this title, have the |
27 | following meanings unless the context clearly requires otherwise: |
28 | (1) "Average weekly wage" means the amount determined by dividing the individual's total |
29 | wages earned for services performed in employment within his or her base period by the number |
30 | of that individual's credit weeks within the base period; |
31 | (2) "Base period" with respect to an individual's benefit year when the benefit year begins |
32 | on or after October 7, 1990, means the first four (4) of the most recently completed five (5) calendar |
33 | quarters immediately preceding the first day of an individual's benefit year; provided, that for any |
34 | individual's benefit year when the benefit year begins on or after October 4, 1992, and for any |
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1 | individual deemed monetarily ineligible for benefits under the "base period" as defined in this |
2 | subdivision, the department shall make a re-determination of entitlement based upon an alternate |
3 | base period which consists of the last four (4) completed calendar quarters immediately preceding |
4 | the first day of the claimant's benefit year. Notwithstanding anything contained to the contrary in |
5 | this subdivision, the base period shall not include any calendar quarter previously used to establish |
6 | a valid claim for benefits; provided, however, that the "base period" with respect to members of the |
7 | United States military service, the Rhode Island National Guard, or a United States military reserve |
8 | force, and who served in a United States declared combat operation during their military service, |
9 | who file a claim for benefits following their release from their state or federal active military service |
10 | and who are deemed to be monetarily ineligible for benefits under this section, shall mean the first |
11 | four (4) of the most recently completed five (5) calendar quarters immediately preceding the first |
12 | day the individual was called into that state or federal active military service; provided, that for any |
13 | individual deemed monetarily ineligible for benefits under the "base period" as defined in this |
14 | section, the department shall make a re-determination of entitlement based upon an alternative base |
15 | period which consists of the last four (4) completed calendar quarters immediately preceding the |
16 | first day the claimant was called into that state or federal active military service. Notwithstanding |
17 | any provision of this section of the general or public laws to the contrary, the base period shall not |
18 | include any calendar quarter previously used to establish a valid claim for benefits; |
19 | (3) "Benefit" means the money payable, as provided in chapters 39 -- 41 of this title, to an |
20 | individual as compensation for his or her unemployment caused by sickness; |
21 | (4) "Benefit credits" means the total amount of money payable to an individual as benefits, |
22 | as provided in § 28-41-7; |
23 | (5) "Benefit rate" means the money payable to an individual as compensation, as provided |
24 | in chapters 39 -- 41 of this title, for his or her wage losses with respect to any week during which |
25 | his or her unemployment is caused by sickness; |
26 | (6) "Benefit year" with respect to any individual who does not already have a benefit year |
27 | in effect, and who files a valid claim for benefits as of November 16, 1958, or any later date, means |
28 | fifty-two (52) consecutive calendar weeks, the first of which shall be the week containing the day |
29 | as of which he or she first files that valid claim in accordance with regulations adopted as |
30 | subsequently prescribed; provided, that for any benefit year beginning on or after October 7, 1990, |
31 | the benefit year shall be fifty-three (53) consecutive calendar weeks if the subsequent filing of a |
32 | new valid claim immediately following the end of a previous benefit year would result in the |
33 | overlapping of any quarter of the base period of the prior new claim. In no event shall a new benefit |
34 | year begin prior to the Sunday next following the end of the old benefit year; |
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1 | (i) For benefit years that begin on or after July 1, 2012, an individual's benefit year will |
2 | begin on the Sunday of the calendar week in which an individual first became unemployed due to |
3 | sickness and for which the individual has filed a valid claim for benefits; |
4 | (7) "Board" means the board of review as created under chapter 19 of title 42; |
5 | (8) "Calendar quarter" has the same definition as contained in chapter 42 of this title; |
6 | (9) "Credit week" means any week within an individual's base period in which that |
7 | individual earns wages amounting to at least twenty (20) times the minimum hourly wage as |
8 | defined in chapter 12 of this title, for performing services in employment for one or more employers |
9 | subject to chapters 39 -- 41 of this title; |
10 | (10) "Director" means the director of the department of labor and training; |
11 | (11) "Employee" means any person who is or has been employed by an employer subject |
12 | to chapters 39 -- 41 of this title and in employment subject to those chapters; providing labor or |
13 | services for remuneration, as opposed to an independent contractor, unless the hiring entity can |
14 | establish that all of the following conditions are satisfied: |
15 | (i) The person is free from the control and direction of the hiring entity in connection with |
16 | the performance of the work, both under the contract for the performance of the work and in fact; |
17 | (ii) The person performs work that is outside the usual course of the hiring entity's business; |
18 | and |
19 | (iii) The person is customarily engaged in an independently established trade, occupation, |
20 | or business, of the same nature as that involved in the work performed. |
21 | (12) "Employer" means any employing unit that is an employer under chapters 42 -- 44 of |
22 | this title; |
23 | (13) "Employing unit" has the same definition as contained in chapter 42 of this title and |
24 | includes any governmental entity that elects to become subject to the provisions of chapters 39 -- |
25 | 41 of this title, in accordance with the provisions of §§ 28-39-3.1 and 28-39-3.2; |
26 | (14) "Employment" has the same definition as contained in chapter 42 of this title; |
27 | (15) "Employment office" has the same definition as contained in chapter 42 of this title; |
28 | (16) "Fund" means the Rhode Island temporary disability insurance fund established by |
29 | this chapter; |
30 | (17) "Partial unemployment due to sickness." For weeks beginning on or after January 1, |
31 | 2006 an individual shall be deemed partially unemployed due to sickness in any week of less than |
32 | full-time work if he or she fails to earn in wages for services for that week an amount equal to the |
33 | weekly benefit rate for total unemployment due to sickness to which he or she would be entitled if |
34 | totally unemployed due to sickness and eligible. |
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1 | (i) For the purposes of this subdivision and subdivision (22) of this section, "Wages" |
2 | includes only that part of remuneration for any work, which is in excess of one-fifth (⅕) of the |
3 | weekly benefit rate for total unemployment, rounded to the next lower multiple of one dollar |
4 | ($1.00), to which the individual would be entitled if totally unemployed and eligible in any one |
5 | week, and "services" includes only that part of any work for which remuneration in excess of one- |
6 | fifth (⅕) of the weekly benefit rate for total unemployment, rounded to the next lower multiple of |
7 | one dollar ($1.00), to which the individual would be entitled if totally unemployed and eligible in |
8 | any one week is payable; provided, that nothing contained in this paragraph shall permit any |
9 | individual to whom remuneration is payable for any work performed in any week in an amount |
10 | equal to, or greater than, his or her weekly benefit rate to receive benefits under this subdivision |
11 | for that week. |
12 | (18) "Reserve fund" means the temporary disability insurance reserve fund established by |
13 | § 28-39-7; |
14 | (19) "Services" means all endeavors undertaken by an individual that are paid for by |
15 | another or with respect to which the individual performing the services expects to receive wages or |
16 | profits; |
17 | (20) "Sickness." An individual shall be deemed to be sick in any week in which, because |
18 | of his or her physical or mental condition, including pregnancy, he or she is unemployed and unable |
19 | to perform his or her regular or customary work or services; |
20 | (21)(i) "Taxes" means the money payments required by chapters 39 -- 41 of this title, to be |
21 | made to the temporary disability insurance fund or to the temporary disability insurance reserve |
22 | fund. |
23 | (ii) Wherever and whenever in chapters 39 -- 41 of this title, the words "contribution" |
24 | and/or "contributions" appear, those words shall be construed to mean the "taxes," as defined in |
25 | this subdivision, which are the money payments required by those chapters to be made to the |
26 | temporary disability insurance fund or to the temporary disability insurance reserve fund; |
27 | (22) "Wages" has the same definition as contained in chapter 42 of this title; provided, that |
28 | no individual shall be denied benefits under chapters 39 -- 41 of this title because his or her |
29 | employer continues to pay to that individual his or her regular wages, or parts of them, while he or |
30 | she is unemployed due to sickness and unable to perform his or her regular or customary work or |
31 | services. The amount of any payments, whether or not under a plan or system, made to or on behalf |
32 | of an employee by his or her employer after the expiration of six (6) calendar months following the |
33 | last calendar month in which the employee performed actual bona fide personal services for his or |
34 | her employer, shall not be deemed to be wages either for the purpose of paying contributions |
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1 | thereon under chapter 40 of this title, or for the purpose of being used as a basis for paying benefits |
2 | under chapter 41 of this title; and |
3 | (23) "Week" has the same definition as contained in chapter 42 of this title. |
4 | SECTION 4. Section 28-42-3 of the General Laws in Chapter 28-42 entitled "Employment |
5 | Security - General Provisions" is hereby amended to read as follows: |
6 | 28-42-3. Definitions. |
7 | The following words and phrases, as used in chapters 42 -- 44 of this title, have the |
8 | following meanings unless the context clearly requires otherwise: |
9 | (1) "Administration account" means the employment security administration account |
10 | established by this chapter. |
11 | (2) "Average weekly wage" means the amount determined by dividing the individual's total |
12 | wages earned for service performed in employment within the individual's base period by the |
13 | number of that individual's credit weeks within the individual's base period. |
14 | (3) "Base period," with respect to an individual's benefit year, means the first four (4), of |
15 | the most recently completed five (5) calendar quarters immediately preceding the first day of an |
16 | individual's benefit year. For any individual's benefit year, and for any individual deemed |
17 | monetarily ineligible for benefits for the "base period" as defined in this subdivision, the department |
18 | shall make a re-determination of entitlement based upon the alternate base period that consists of |
19 | the last four (4) completed calendar quarters immediately preceding the first day of the claimant's |
20 | benefit year. Notwithstanding anything contained to the contrary in this subdivision, the base period |
21 | shall not include any calendar quarter previously used to establish a valid claim for benefits; |
22 | provided, that notwithstanding any provision of chapters 42 -- 44 of this title to the contrary, for |
23 | the benefit years beginning on or after October 4, 1992, whenever an individual who has received |
24 | workers' compensation benefits is entitled to reinstatement under § 28-33-47, but the position to |
25 | which reinstatement is sought does not exist or is not available, the individual's base period shall |
26 | be determined as if the individual filed for benefits on the date of the injury. |
27 | (4) "Benefit" means the money payable to an individual as compensation for the |
28 | individual's wage losses due to unemployment as provided in these chapters. |
29 | (5) "Benefit credits" means the total amount of money payable to an individual as benefits, |
30 | as determined by § 28-44-9. |
31 | (6) "Benefit rate" means the money payable to an individual as compensation, as provided |
32 | in chapters 42 -- 44 of this title, for the individual's wage losses with respect to any week of total |
33 | unemployment. |
34 | (7) "Benefit year," with respect to any individual who does not already have a benefit year |
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1 | in effect and who files a valid claim for benefits, means fifty-two (52) consecutive calendar weeks, |
2 | the first of which shall be the week containing the day as of which he or she first files a valid claim |
3 | in accordance with regulations adopted as hereinafter prescribed; provided, that the benefit year |
4 | shall be fifty-three (53) weeks if the filing of a new, valid claim would result in overlapping any |
5 | quarter of the base period of a prior new claim previously filed by the individual. In no event shall |
6 | a new benefit year begin prior to the Sunday next following the end of the old benefit year. |
7 | (8) "Calendar quarter" means the period of three (3) consecutive calendar months ending |
8 | March 31, June 30, September 30, and December 31; or the equivalent thereof, in accordance with |
9 | regulations as subsequently prescribed. |
10 | (9) "Contributions" means the money payments to the state employment security fund |
11 | required by those chapters. |
12 | (10) "Credit amount," effective July 6, 2014, means earnings by the individual in an amount |
13 | equal to at least eight (8) times the individual's weekly benefit rate. |
14 | (11) "Credit week," prior to July 1, 2012, means any week within an individual's base |
15 | period in which that individual earned wages amounting to at least twenty (20) times the minimum |
16 | hourly wage as defined in chapter 12 of this title for performing services in employment for one or |
17 | more employers subject to chapters 42 -- 44 of this title, and for the period July 1, 2012, through |
18 | July 5, 2014, means any week within an individual's base period in which that individual earned |
19 | wages amounting to at least the individual's weekly benefit rate for performing services in |
20 | employment for one or more employers subject to chapters 42 -- 44 of this title. |
21 | (12) "Crew leader," for the purpose of subdivision (19) of this section, means an individual |
22 | who: |
23 | (i) Furnishes individuals to perform service in agricultural labor for any other person; |
24 | (ii) Pays (either on the crew leader's own behalf or on behalf of that other person) the |
25 | individuals so furnished by the crew leader for the service in agricultural labor performed by them; |
26 | and |
27 | (iii) Has not entered into a written agreement with that other person (farm operator) under |
28 | which that individual (crew leader) is designated as an employee of that other person (farm |
29 | operator). |
30 | (13) "Director" means the head of the department of labor and training or the director's |
31 | authorized representative. |
32 | (14) "Domestic service employment." "Employment" includes domestic service in a |
33 | private home performed for a person who paid cash remuneration of one thousand dollars ($1,000) |
34 | or more in any calendar quarter in the current calendar year, or the preceding calendar year, to |
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1 | individuals employed in that domestic service. |
2 | (15) "Employee" means any person who is, or has been, employed by an employer subject |
3 | to those chapters and in employment subject to those chapters; providing labor or services for |
4 | remuneration, as opposed to an independent contractor, unless the hiring entity can establish that |
5 | all of the following conditions are satisfied: |
6 | (i) The person is free from the control and direction of the hiring entity in connection with |
7 | the performance of the work, both under the contract for the performance of the work and in fact; |
8 | (ii) The person performs work that is outside the usual course of the hiring entity's business; |
9 | and |
10 | (iii) The person is customarily engaged in an independently established trade, occupation, |
11 | or business of the same nature as that involved in the work performed. |
12 | (16) "Employer" means: |
13 | (i) Any employing unit that was an employer as of December 31, 1955; |
14 | (ii) Any employing unit that for some portion of a day on and after January 1, 1956, has, |
15 | or had, in employment, within any calendar year, one or more individuals; except, however, for |
16 | "domestic service employment," as defined in subdivision (14) of this section; |
17 | (iii) For the effective period of its election pursuant to § 28-42-12, any other employing |
18 | unit that has elected to become subject to chapters 42 -- 44 of this title; or |
19 | (iv) Any employing unit not an employer by reason of any other paragraph of this |
20 | subdivision for which, within either the current or preceding calendar year, service is, or was, |
21 | performed with respect to which that employing unit is liable for any federal tax against which |
22 | credit may be taken for contributions required to be paid into this state's employment security fund; |
23 | or which, as a condition for approval of chapters 42 -- 44 of this title for full tax credit against the |
24 | tax imposed by the Federal Unemployment Tax Act, 26 U.S.C. § 3301 et seq., is required, pursuant |
25 | to that act, to be an "employer" under chapters 42 -- 44 of this title. |
26 | (17) "Employing unit" means any person, partnership, association, trust, estate, or |
27 | corporation, whether domestic or foreign, or its legal representative, trustee in bankruptcy, receiver, |
28 | or trustee, or the legal representative of a deceased person, that has, or had, in the unit's employ, |
29 | one or more individuals. For the purposes of subdivision (14) of this section, a private home shall |
30 | be considered an employing unit only if the person for whom the domestic service was performed |
31 | paid cash remuneration of one thousand dollars ($1,000) or more in any calendar quarter in the |
32 | current calendar year, or the preceding calendar year, to individuals employed in that domestic |
33 | service in that private home. |
34 | (18)(i) "Employment," subject to §§ 28-42-4 -- 28-42-10, means service, including service |
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1 | in interstate commerce, performed for wages, or under any contract of hire, written or oral, express |
2 | or implied; provided, that service performed shall also be deemed to constitute employment for all |
3 | the purposes of chapters 42 -- 44 of this title if performed by an individual in the employ of a |
4 | nonprofit organization as described in subdivision (25) of this section, except as provided in § 28- |
5 | 42-8(7). |
6 | (ii) Notwithstanding any other provisions of this section, "Employment" also means service |
7 | with respect to which a tax is required to be paid under any federal law imposing a tax against |
8 | which credit may be taken for contributions required to be paid into this state's employment security |
9 | fund or which, as a condition for full tax credit against the tax imposed by the Federal |
10 | Unemployment Tax Act, is required to be covered under chapters 42 -- 44 of this title. |
11 | (iii) Employment not to include owners. Employment does not include services performed |
12 | by sole proprietors (owners), partners in a partnership, limited liability company -- single member |
13 | filing as a sole proprietor with the IRS, or members of a limited liability company filing as a |
14 | partnership with the IRS. |
15 | (19) "Employment -- Crew leader." For the purposes of subdivision (12) of this section: |
16 | (i) Any individual who is a member of a crew furnished by a crew leader to perform service |
17 | in agricultural labor for any other person shall be treated as an employee of that crew leader if: |
18 | (A) That crew leader holds a valid certificate of registration under the Migrant and Seasonal |
19 | Agricultural Worker Protection Act, 29 U.S.C. § 1801 et seq., or substantially all members of that |
20 | crew operate or maintain tractors, mechanized harvesting, or crop-dusting equipment, or any other |
21 | mechanized equipment that is provided by that crew leader; and |
22 | (ii) That individual is not an employee of the other person within the meaning of |
23 | subdivision (15) of this section; and |
24 | (iii) In the case of any individual who is furnished by a crew leader to perform service in |
25 | agricultural labor for any other person and who is not treated as an employee of that crew leader: |
26 | (A) That other person, and not the crew leader, shall be treated as the employer of that |
27 | individual; and |
28 | (B) That other person shall be treated as having paid cash remuneration to that individual |
29 | in an amount equal to the amount of cash remuneration paid to that individual by the crew leader |
30 | (either on the crew leader's own behalf or on behalf of that other person) for the service in |
31 | agricultural labor performed for that other person. |
32 | (20) "Employment office" means a free, public-employment office, or its branch, operated |
33 | by the director or by this state as part of a system of free, public-employment offices, or any other |
34 | agency that the director may designate with the approval of the Social Security Administration. |
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1 | (21) "Fund" means the employment security fund established by this chapter. |
2 | (22) "Governmental entity" means state and local governments in this state and includes |
3 | the following: |
4 | (i) The state of Rhode Island or any of its instrumentalities, or any political subdivision of |
5 | the state, or any of its instrumentalities; |
6 | (ii) Any instrumentality of more than one of these entities; or |
7 | (iii) Any instrumentality of any of these entities and one or more other states or political |
8 | subdivisions. |
9 | (23) "Hospital" means an institution that has been licensed, certified, or approved by the |
10 | department of health as a hospital. |
11 | (24)(i) "Institution of higher education" means an educational institution in this state that: |
12 | (A) Admits, as regular students, only individuals having a certificate of graduation from a |
13 | high school, or the recognized equivalent of such certificate; |
14 | (B) Is legally authorized within this state to provide a program of education beyond high |
15 | school; |
16 | (C) Provides: |
17 | (I) An educational program for which it awards a bachelor's or higher degree, or a program |
18 | that is acceptable for full credit toward such a degree; |
19 | (II) A program of post-graduate or post-doctoral studies; or |
20 | (III) A program of training to prepare students for gainful employment in a recognized |
21 | occupation; and |
22 | (D) Is a public or other nonprofit institution. |
23 | (ii) Notwithstanding any of the preceding provisions of this subdivision, all colleges and |
24 | universities in this state are institutions of higher education for purposes of this section. |
25 | (25) "Nonprofit organization" means an organization, or group of organizations, as defined |
26 | in 26 U.S.C. § 501(c)(3), that is exempt from income tax under 26 U.S.C. § 501(a). |
27 | (26)(i) "Partial unemployment." An employee shall be deemed partially unemployed in any |
28 | week of less than full-time work if the employee fails to earn in wages for that week an amount |
29 | equal to the weekly benefit rate for total unemployment to which the employee would be entitled |
30 | if totally unemployed and eligible. For weeks beginning on or after May 23, 2021, through June |
31 | 30, 2022, an employee shall be deemed partially unemployed in any week of less than full-time |
32 | work if the employee fails to earn wages for that week in an amount equal to or greater than one |
33 | hundred and fifty percent (150%) of the weekly benefit rate for total unemployment to which the |
34 | employee would be entitled if totally unemployed and eligible. |
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1 | (ii) For the purposes of this subdivision and subdivision (28) of this section, "wages" |
2 | includes only that part of remuneration for any work that is in excess of one-fifth (1/5) of the weekly |
3 | benefit rate for total unemployment, rounded to the next lower multiple of one dollar ($1.00), to |
4 | which the individual would be entitled if totally unemployed and eligible in any one week, and |
5 | "services" includes only that part of any work for which remuneration in excess of one-fifth (1/5) |
6 | of the weekly benefit rate for total unemployment, rounded to the next lower multiple of one dollar |
7 | ($1.00), to which the individual would be entitled if totally unemployed and eligible in any one |
8 | week is payable; provided, that nothing contained in this paragraph shall permit any individual to |
9 | whom remuneration is payable for any work performed in any week in an amount equal to or greater |
10 | than his or her weekly benefit rate to receive benefits under this subdivision for that week. |
11 | (iii) Notwithstanding the foregoing, for weeks ending on or after May 23, 2021, through |
12 | June 30, 2022, "wages" includes only that part of remuneration for any work that is in excess of |
13 | fifty percent (50%) of the weekly benefit rate for total unemployment, rounded to the next lower |
14 | multiple of one dollar ($1.00), to which the individual would be entitled if totally unemployed and |
15 | eligible in any one week, and "services" includes only that part of any work for which remuneration |
16 | in excess of fifty percent (50%) of the weekly benefit rate for total unemployment, rounded to the |
17 | next lower multiple of one dollar ($1.00), to which the individual would be entitled if totally |
18 | unemployed and eligible in any one week is payable. Provided, that, during the period defined in |
19 | this subdivision, nothing contained in this subdivision shall permit any individual to whom |
20 | remuneration is payable for any work performed in any week in an amount equal to or greater than |
21 | one hundred fifty percent (150%) of their weekly benefit rate to receive benefits under this |
22 | subdivision for that week. |
23 | (iv) Notwithstanding anything contained to the contrary in this subdivision, "services," as |
24 | used in this subdivision and in subdivision (28) of this section, does not include services rendered |
25 | by an individual under the exclusive supervision of any agency of this state, or any of its political |
26 | subdivisions, by which the services are required solely for the purpose of affording relief, support, |
27 | or assistance to needy individuals performing those services, or services performed by members of |
28 | the national guard and organized reserves in carrying out their duties in weekly drills as members |
29 | of those organizations. "Wages," as used in this subdivision and in subdivision (28) of this section, |
30 | does not include either remuneration received by needy individuals for rendering the |
31 | aforementioned services when that remuneration is paid exclusively from funds made available for |
32 | that purpose out of taxes collected by this state or any of its political subdivisions, or remuneration |
33 | received from the federal government by members of the national guard and organized reserves, as |
34 | drill pay, including longevity pay and allowances. |
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1 | (27) "Payroll" means the total amount of all wages paid by the employer to the employer's |
2 | employees for employment. |
3 | (28) "Total unemployment." An individual shall be deemed totally unemployed in any |
4 | week in which the individual performs no services (as used in subdivision (26) of this section) and |
5 | for which the individual earns no wages (as used in subdivision (26) of this section), and in which |
6 | the individual cannot reasonably return to any self-employment in which the individual has |
7 | customarily been engaged. |
8 | (29) "Wages" means all remuneration paid for personal services on or after January 1, 1940, |
9 | including commissions and bonuses and the cash value of all remuneration paid in any medium |
10 | other than cash, and all other remuneration that is subject to a tax under a federal law imposing a |
11 | tax against which credit may be taken for contributions required to be paid into a state |
12 | unemployment fund. Gratuities customarily received by an individual in the course of the |
13 | individual's employment from persons other than the individual's employing unit shall be treated |
14 | as wages paid by the individual's employing unit. The reasonable cash value of remuneration paid |
15 | in any medium other than cash, and the reasonable amount of gratuities, shall be estimated and |
16 | determined in accordance with rules prescribed by the director; except that for the purpose of this |
17 | subdivision and of §§ 28-43-1 -- 28-43-14, this term does not include: |
18 | (i) That part of remuneration that is paid by an employer to an individual with respect to |
19 | employment during any calendar year, after remuneration equal to the amount of the taxable wage |
20 | base as determined in accordance with § 28-43-7 has been paid during that calendar year by the |
21 | employer or the employer's predecessor to that individual; provided, that if the definition of |
22 | "wages" as contained in the Federal Unemployment Tax Act is amended to include remuneration |
23 | in excess of the taxable wage base for that employment, then, for the purposes of §§ 28-43-1 -- 28- |
24 | 43-14, "wages" includes the remuneration as previously set forth, up to an amount equal to the |
25 | dollar limitation specified in the federal act. For the purposes of this subdivision, "employment" |
26 | includes services constituting employment under any employment security law of another state or |
27 | of the federal government; |
28 | (ii) The amount of any payment made to, or on behalf of, an employee under a plan or |
29 | system established by an employer that makes provision for employees generally, or for a class or |
30 | classes of employees (including any amount paid by an employer or an employee for insurance or |
31 | annuities, or into a fund, to provide for any such payment), on account of: |
32 | (A) Retirement; |
33 | (B) Sickness or accident disability; |
34 | (C) Medical and hospitalization expenses in connection with sickness or accident |
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1 | disability; or |
2 | (D) Death; provided, that the employee has not the: |
3 | (I) Option to receive, instead of provision for that death benefit, any part of that payment |
4 | or, if that death benefit is insured, any part of the premiums (or contributions to premiums) paid by |
5 | the individual's employer; and |
6 | (II) Right, under the provisions of the plan or system or policy of insurance providing for |
7 | that death benefit, to assign that benefit, or to receive a cash consideration in lieu of that benefit |
8 | either upon the employee's withdrawal from the plan or system providing for that benefit or upon |
9 | termination of the plan or system or policy of insurance, or of the individual's employment with |
10 | that employer; |
11 | (E) The payment by an employer (without deduction from the remuneration of the |
12 | employee) of: |
13 | (I) The tax imposed upon an employee under 26 U.S.C. § 3101; or |
14 | (II) Any payment required from an employee under chapters 42 -- 44 of this title; |
15 | (iii) Any amount paid by an employee, or an amount paid by an employer, under a benefit |
16 | plan organized under the Internal Revenue Code [26 U.S.C. § 125]. |
17 | (30) "Week" means the seven-day (7) calendar week beginning on Sunday at 12:01 A.M. |
18 | and ending on Saturday at 12:00 A.M. midnight. |
19 | 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 -- MINIMUM WAGES | |
*** | |
1 | This act would, for purposes of wages, workers' compensation, temporary disability and |
2 | unemployment insurance benefits, create a new definition for the term "employee", which deems a |
3 | worker to be an employee, as opposed to an independent contractor, unless three (3) specific |
4 | conditions are satisfied. |
5 | This act would take effect upon passage. |
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