Chapter 111

2003 -- S 0859 AS AMENDED

Enacted 07/04/03

A N A C T

RELATING TO EMPLOYMENT SECURITY -- GENERAL PROVISIONS

Introduced By: Senator Kevin A. Breene

Date Introduced: February 26, 2003

It is enacted by the General Assembly as follows:

SECTION 1. 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 will make a redetermination of entitlement based upon the alternate base period, 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 does 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 section 28-33-47,

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

base period will 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

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 section 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 will be the week containing the day as of which he or she first files a

valid claim in accordance with regulations adopted as subsequently prescribed in this chapter;

provided, however, that the benefit year will 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; provided, further, that in no event does 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 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 week" 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;

(11) "Crew leader", for the purpose of subdivision (18), 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 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 which that individual (crew leader) is designated as an employee of that other person (farm

operator).

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

authorized representative;

(13) "Domestic service employment". The term "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;

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

to those chapters and in employment subject to those chapters;

(15) "Employer" means:

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

(ii) Any employing unit which 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 (13) of this section;

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

employing unit which 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. section 3301 et seq., is

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

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

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

receiver, or trustee of any of them, or the legal representative of a deceased person, which has, or

had in his or her employ one or more individuals; provided, that for the purposes of subdivision

(13) of this section, a private home is 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;

(17) (i) "Employment", subject to sections 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 is also 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 (24) of this section except as provided in

section 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;

(18) "Employment -- Crew leader", for the purposes of subdivision (14) 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. section 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, which is provided by that crew leader; and

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

subdivision (14) 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:

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

individual; and

(B) That other person will 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;

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

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

agency that the director may designate with the approval of the social security administration;

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

(21) "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 these or any of its instrumentalities;

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

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

subdivisions;

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

the department of health as a hospital;

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

which:

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

high school, or the recognized equivalent of this certificate;

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

school;

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

program which is acceptable for full credit toward this 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;

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

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

501(a);

(25) (i) "Partial unemployment". An employee is 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 (27) of this section, the term

"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 the term "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

section permits 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, the term

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

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

any political subdivision of the state, where 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, and the term "wages", as used in this

subdivision and in subdivision (27) of this section, does not include either remuneration received

by needy individuals for rendering these services when that remuneration is paid exclusively from

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

subdivision of the state, or remuneration received from the federal government by members of the

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

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

employees for employment;

(27) "Total unemployment." An individual is deemed totally unemployed in any week in

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

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

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

engaged;

(28) "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 which 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 will 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, will be estimated and determined in

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

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

(i) That part of remuneration which 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 section 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

the term "wages" as contained in the Federal Unemployment Tax Act, 26 U.S.C. section 3301 et

seq., is amended to include remuneration in excess of the taxable wage base for that employment,

then, for the purposes of sections 28-43-1 -- 28-43-14, "wages" includes the remuneration as

previously set forth in this subsection up to an amount equal to the dollar limitation specified in

the federal act. For the purposes of this subdivision, the term "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 which 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 this payment), on account of:

(A) Retirement;

(B) Sickness or accident disability;

disability; or

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

(I) The 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 by his or her employer; and

(II) The 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; or

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

~~plan organized under section 125 of the Internal Revenue Code, 26 U.S.C. section 125.~~

(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. section 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 Section 125 of the Internal Revenue Code.

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

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

SECTION 2. This act shall take effect upon passage.

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LC02240

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