Title 28
Labor and Labor Relations

Chapter 42
Employment Security — General Provisions

§ 28-42-14.1. Treatment of Indian tribes.

(a) “Employer” includes any Indian tribe for which service in employment as defined under chapters 42 — 44 of this title is performed.

(b) “Employment” includes service performed in the employ of an Indian tribe, as defined in section 3306(u) of the Federal Unemployment Tax Act (FUTA), 26 U.S.C. § 3306(u), provided the service is excluded from “employment” as defined in FUTA solely by reason of section 3306(c)(7), FUTA, 26 U.S.C. § 3306(c)(7), and is not otherwise excluded from “employment” under chapters 42 — 44 of this title. For the purposes of this section, the exclusions from employment in § 28-42-14 shall be applicable to service performed in the employ of an Indian tribe.

(c) Benefits based on service in employment defined in this section shall be payable in the same amount, on the same terms, and subject to the same conditions as benefits payable on the basis of other service required to be covered under chapters 42 — 44 of this title.

(d)(1) Indian tribes or tribal units (subdivisions, subsidiaries or business enterprises wholly owned by such Indian tribes) subject to the provisions of chapters 42 — 44 of this title shall pay contributions under the same terms and conditions as all other subject employers, unless they elect to pay into the employment security fund amounts equal to the amount of benefits attributable to service in the employ of the Indian tribe.

(2) Indian tribes electing to make payments in lieu of contributions must make that election in the same manner and under the same conditions as provided in §§ 28-43-24 and 28-43-28 — 28-43-31 pertaining to state and local governments and nonprofit organizations subject to the provisions of chapters 42 — 44 of this title. Indian tribes will determine if reimbursement for benefits paid will be elected by the tribe as a whole, by individual tribal units, or by combinations of individual tribal units.

(3) Indian tribes or tribal units will be billed for the full amount of benefits attributable to service in the employ of the Indian tribe or tribal unit on the same schedule as other employing units that have elected to make payments in lieu of contributions.

(4) At the discretion of the director, any Indian tribe or tribal unit that elects to become liable for payments in lieu of contributions shall be required within thirty (30) days after the effective date of its election, to:

(i) Execute and file with the director a surety bond approved by the director; or

(ii) Deposit with the director money or securities on the same basis as other employers with the same election option.

(e)(1)(i) Failure of the Indian tribe or tribal unit to make required payments, including assessments of interest and penalty, within ninety (90) days of receipt of the bill will cause the Indian tribe to lose the option to make payments in lieu of contributions, as described in subsection (d), for the following tax year unless payment in full is received before contribution rates for the next tax year are computed.

(ii) An Indian tribe that loses the option to make payments in lieu of contributions due to late payment or nonpayment, as described in subsection (e)(1)(i) of this section, shall have that option reinstated if, after a period of one year, all contributions have been made timely, provided no contributions, payments in lieu of contributions for benefits paid, penalties, or interest remain outstanding.

(2)(i) Failure of the Indian tribe or any of its tribal units to make required payments, including assessments of interest and penalty, after all collection activities deemed necessary by the director have been exhausted, will cause services performed for that tribe to not be treated as “employment” for purposes of subsection (b) of this section.

(ii) The director may determine that any Indian tribe that loses coverage under subsection (e)(2)(i) of this section may have services performed for that tribe again included as “employment” for purposes of subsection (b) of this section if all contributions, payments in lieu of contributions, penalties, and interest have been paid.

(iii) The director will notify the United States Internal Revenue Service and the United States Department of Labor of any termination or reinstatement of coverage made under subsections (e)(2)(i) and (ii) of this section.

(f) Notices of payment and reporting delinquency to Indian tribes or their tribal units shall include information that failure to make full payment within the prescribed time frame:

(1) Will cause the Indian tribe to be liable for taxes under FUTA;

(2) Will cause the Indian tribe to lose the option to make payments in lieu of contributions;

(3) Could cause the Indian tribe to be excepted from the definition of “employer,” as provided in subsection (a) of this section, and services in the employ of the Indian tribe, as provided in subsection (b) of this section, to be excepted from “employment.”

(g) Extended benefits paid under the provisions of § 28-44-62 that are attributable to service in the employ of an Indian tribe and not reimbursed by the federal government shall be financed in their entirety by the Indian tribe.