§ 3302 — Definitions
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Text
As used in this chapter, unless the context clearly requires otherwise, the following terms shall have the meanings designated in this section:
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As used in this chapter, unless the context clearly requires otherwise, the following terms shall have the meanings designated in this section:
(1) “Assessments” means the money payments to the State Unemployment Compensation Fund required by this chapter.
(2) “Assessment rate year” means the calendar year for which an assessment rate is in effect.
(3) “Base period” means the first 4 of the last 5 completed calendar quarters immediately preceding the first day of an individual’s benefit year. However, if the claimant has earned insufficient wages in the first 4 of the last 5 completed calendar quarters to become eligible for benefits, then such claimant’s “base period” shall be the 4 most recent completed calendar quarters immediately preceding the first day of the claimant’s benefit year.
(4) “Benefit charges” means the amount of benefits paid by the Department to an individual that has been charged to an employer’s experience merit rating account pursuant to § 3355 of this title.
(5) “Benefit year” with respect to any individual means the 1-year period beginning with the first day of the first week with respect to which the individual first files a valid claim for benefits, and thereafter the 1-year period beginning with the first day of the first week with respect to which the individual next files a valid claim for benefits after the termination of the worker’s last preceding benefit year. Provided that, when the last day of such 1-year period falls within a week with respect to which an individual has met the eligibility requirements of this chapter, the ending date of the benefit year may be extended for a period not to exceed 6 days, and provided further that, for the purpose of filing any subsequent claim for benefits, the extension of the benefit year as provided in this paragraph shall not change the benefit year ending date as established prior to such extension.
As used in this paragraph, a “valid claim” is any claim for benefits made in accordance with § 3317 of this title if the individual has been paid wages for employment required under § 3315(5) of this title.
(6) “Benefits” means the money payments payable to an individual, as provided in this chapter, with respect to the individual’s unemployment.
(7) “Calendar quarter” means the period of 3 consecutive calendar months ending on March 31, June 30, September 30 or December 31, excluding, however, any calendar quarter or portion thereof which occurs prior to January 1, 1938, or the equivalent thereof as the Department may by regulation prescribe.
(8) “Covered wages” means the aggregate amount of all remuneration with respect to employment paid to an individual by an employer or the employer’s predecessor during a calendar year and which are required to be reported in the quarterly assessment reports submitted by an employer to the Division for the period covered by such calendar year, pursuant to paragraphs (27) and (28)(B) of this section but not limited by the limits set forth in paragraph (28)(A) of this section and excluding employers who pay reimbursement payments in lieu of assessments pursuant to § 3345(b).
(9) “Delinquency assessment rate” means the assessment rate the Department shall assign for the period of 12 months commencing January 1 of any assessment rate year to a delinquent employer. The delinquency assessment rate for rated employers shall be 6.3% multiplied by the taxable wages paid by the delinquent employer during any calendar quarter. The delinquency assessment rate for new employers shall be as set forth in § 3348(o)(4) of this title.
(10) “Delinquent employer” means a rated employer or new employer who is delinquent as of September 30 of the prior assessment rate year in filing any required reports or paying any assessments due on wages paid for employment for such employer during pay periods ending on or prior to June 30 of the prior assessment rate year.
(11) “Department” means the Department of Labor.
(12) “Employer” means:
(A) (i) Any employing unit which after December 31, 1971,
(I) In any calendar quarter in either the current or preceding calendar year paid for service in employment wages of $1,500 or more, or
(II) For some portion of a day in each of 20 different calendar weeks, whether or not such weeks were consecutive, in either the current or preceding calendar year, had in employment at least 1 individual (irrespective of whether the same individual was in employment in each such day);
(ii) Any employing unit for which agricultural labor as defined in paragraph (15)(A)(vii) of this section is performed after December 31, 1977;
(iii) Any employing unit for which domestic service as defined in paragraph (15)(B) of this section is performed after December 31, 1977;
(iv) (I) In determining whether or not an employing unit for which service other than domestic service is also performed is an employer under paragraphs (12)(A)(i) and (ii) of this section the wages earned or the employment of an employee performing domestic service after December 31, 1977, shall not be taken into account;
(II) In determining whether or not an employing unit for which service other than agricultural labor is also performed is an employer under paragraphs (12)(A)(i) and (iii) of this section, the wages earned or the employment of an employee performing service in agricultural labor after December 31, 1977, shall not be taken into account. If an employing unit is determined an employer of agricultural labor, such employing unit shall be determined an employer for the purposes of paragraph (12)(A)(i) of this section;
(B) Any employing unit for which service in employment as defined in paragraph (14)(B)(iii) of this section is performed;
(C) Any employing unit for which service in employment, as defined in paragraph (14)(C) of this section, is performed after December 31, 1971;
(D) Any employing unit (whether or not an employing unit at the time of acquisition) which acquired the organization, trade or business, or substantially all of the assets thereof, of another employing unit which at the time of such acquisition was an employer subject to this chapter, or which acquired a part of the organization, trade or business of another employing unit which at the time of such acquisition was an employer subject to this chapter;
(E) Any employing unit which acquired the organization, trade or business, or substantially all the assets thereof, of another employing unit (not an employer subject to this chapter) and which would be an employer under paragraph (12)(A) of this section if, subsequent to such acquisition, it were treated as a single unit with such other employing unit;
(F) Any employing unit which, together with 1 or more other employing units, is owned or controlled (by legally enforceable means or otherwise) directly or indirectly by the same interests, or which owns or controls 1 or more other employing units (by legally enforceable means or otherwise), and which if treated as a single unit with such other employing units or interests or both would be an employer under paragraph (12)(A) of this section;
(G) Any employing unit not an employer by reason of any other paragraph of this paragraph (12):
(i) For which, within either the current or preceding calendar year, service is or was performed with respect to which such employing unit is liable for any federal tax against which credit may be taken for assessments required to be paid into a state unemployment fund; or
(ii) Which, as a condition for approval of this part for full tax credit against the tax imposed by the Federal Unemployment Tax Act [26 U.S.C. § 3301 et seq.], is required, pursuant to such Act, to be an “employer” under this part;
(H) Any employing unit which, having become an employer under paragraph (12)(A), (B), (C), (D), (E), (F) or (G) of this section, has not under § § 3341 through 3343 of this title ceased to be an employer subject to this chapter; and
(I) For the effective period of its election pursuant to § 3343 of this title, any employing unit which has elected to become subject to this chapter.
(J) For purposes of this paragraph (12), an employee leasing company, a professional employment organization (PEO) or any other similar entity shall not be considered to be the employer of any leased employees. The services performed by leased employees shall be considered to be services performed for the employer client company of the employee leasing company, professional employment organization (PEO) or any similar entity and the employer client company shall be considered to be the employer of its leased employees. An employer client company shall be responsible for reporting the gross wages of its leased employees to the Division of Unemployment Insurance on Form UC-8A (Quarterly Payroll Report) and for paying any assessments due on the taxable wages of its leased employees to the Division of Unemployment Insurance as reported on Form UC-8 (Quarterly Tax Report). The unemployment insurance assessment rate for an employer client company, as determined in accordance with § § 3350 or 3350A of this title, shall include the unemployment insurance claims experience of the employer client company’s leased employees. This paragraph does not apply to a temporary help firm as defined in § 3327 of this title unless such temporary help firm provides leased employees to an employer client company. In such cases, the employee leasing segment of the temporary help firm’s business shall be subject to this paragraph. For the purpose of this paragraph (12)(J), an “employee leasing company,” “professional employment organization (PEO)” or similar entity shall mean an employing unit established to engage in the business of providing leased employees to an employer client company. For the purpose of this paragraph, an “employer client company” shall mean a company who enters into an agreement with an employee leasing company, professional employment organization (PEO) or similar entity to lease any or all of its regular employees.
For purposes of paragraphs (12)(A) and (C) of this section, employment shall include service which would constitute employment but for the fact that such service is deemed to be performed entirely within another state pursuant to an election under an arrangement entered into (in accordance with § 3131 of this title) by the Department and an agency charged with the administration of any other state or federal unemployment compensation law.
For purposes of paragraphs (12)(A)(i)(II) and (C) of this section, if any week includes both December 31 and January 1, the days of that week up to January 1 shall be deemed 1 calendar week and the days beginning January 1 another such week.
(13) (A) “Employing unit” means any individual or type of organization, including any partnership, association, trust, estate, joint stock company, insurance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof or the legal representative of a deceased person, which has or subsequent to January 1, 1936, had in its employ 1 or more individuals performing services for it within this State. Employing unit also means any governmental entity which has in its employ individuals performing services. All individuals performing services within this State for any employing unit which maintains 2 or more separate establishments within this State shall be deemed to be employed by a single employing unit for all other purposes of this chapter.
(B) Whenever any employing unit contracts with or has under it any contractor or subcontractor for any work which is part of its usual trade, occupation, profession or business, such employing unit shall for all the purposes of this chapter be deemed to employ each individual in the employ of each such contractor or subcontractor for each day during which such individual is engaged in performing such work and shall be liable for the employer assessments with respect to wages paid to such individuals by such contractor or subcontractor, except that any employing unit which becomes liable for and pays assessments with respect to individuals in the employ of any such contractor or subcontractor may recover the same from such contractor or subcontractor. Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall be deemed to be employed by such employing unit for all the purposes of this chapter, whether such individual was hired or paid directly by such employing unit or by such agent or employee, providing the employing unit had actual or constructive knowledge of the work, except as provided in paragraph (15)(A)(vii) of this section.
(14) “Employment” means:
(A) Any service performed prior to January 1, 1978, which was employment as defined in this paragraph prior to such date and, subject to the other provisions of this paragraph, service performed after December 31, 1977, including service in interstate commerce, by
(i) Any officer of a corporation after December 31, 1995.
(ii) Any individual who, under paragraph (14)(K) of this section, has the status of an employee; or
(iii) Any individual other than an individual who is an employee under paragraph (14)(A)(i) or (ii) of this section who performs services for remuneration for any person:
(I) As an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages (other than milk) or laundry or dry cleaning services, for the driver’s principal; or
(II) As a traveling or city salesperson, other than as an agent-driver or commission-driver, engaged upon a full-time basis in the solicitation on behalf of, and the transmission to, the person’s principal (except for sideline sales activities on behalf of some other person) of orders from wholesalers, retailers, contractors or operators of hotels, restaurants or other similar establishments for merchandise for resale or supplies for use in their business operations;
(III) As a homeworker performing work, according to specifications furnished by the person for whom the services are performed, on materials or goods furnished by such person which are required to be returned to such person or a person designated by such person;
Provided, that for purposes of paragraph (14)(A)(iii) of this section, the term “employment” shall include services described in paragraphs (14)(A)(iii)(I), (II) and (III) of this section, performed after December 31, 1977, only if:
1. The contract of service contemplates that substantially all of the services are to be performed personally by such individual;
2. The individual does not have a substantial investment in facilities used in connection with the performance of the services (other than in facilities for transportation); and
3. The services are not in the nature of a single transaction that is not part of a continuing relationship with the person for whom the services are performed.
(B) (i) Service performed after December 31, 1971, by an individual in the employ of this State or any of its instrumentalities (or in the employ of this State and 1 or more other states or their instrumentalities) for a hospital or institution of higher education located in this State, provided that such service is excluded from “employment” as defined in the Federal Unemployment Tax Act [26 U.S.C. § 3301 et seq.]; or
(ii) Service performed after June 30, 1972, and before January 1, 1978, by an individual in the employ of this State or any of its instrumentalities, provided that such service is classified by the State Personnel Commission. As used in this paragraph, a “classified employee” is a person holding a career job based on a merit system under a specific pay plan in accordance with merit system screening, regulation and law. Coverage is restricted to services of classified employees not employed on a seasonal or temporary basis.
(iii) Service performed after December 31, 1977, in the employ of this State or any of its instrumentalities or any political subdivision thereof or any of its instrumentalities or any instrumentality of more than 1 of the foregoing or any instrumentality of any of the foregoing and 1 or more other states or political subdivisions, provided that such service is excluded from “employment” as defined in the Federal Unemployment Tax Act by § 3306(c)(7) of that act [26 U.S.C. § 3306(c)(7)] and is not excluded from “employment” under paragraph (14)(D)(iii) of this section.
(C) Service performed after December 31, 1971, by an individual in the employ of a religious, charitable, educational or other organization but only if the following conditions are met:
(i) The service is excluded from “employment” as defined in the Federal Unemployment Tax Act solely by reason of § 3306(c)(8) of that act [26 U.S.C. § 3306(c)(8)]; and
(ii) The organization had 4 or more individuals in employment for some portion of a day in each of 20 different weeks, whether or not such weeks were consecutive, within either the current or preceding calendar year, regardless of whether they were employed at the same moment of time.
(D) For the purposes of paragraphs (14)(B) and (C) of this section, the term “employment” does not apply to service performed:
(i) In the employ of:
(I) A church or convention or association of churches; or
(II) An organization which is operated primarily for religious purposes and which is operated, supervised, controlled or principally supported by a church or convention or association of churches; or
(ii) By a duly ordained, commissioned or licensed minister of a church in the exercise of a ministry or by a member of a religious order in the exercise of duties required by such order; or
(iii) Prior to January 1, 1978, in the employ of a school which is not an institution of higher education; after December 31, 1977, in the employ of a governmental entity referred to in paragraph (14)(B)(iii) of this section if such service is performed by an individual in the exercise of duties:
(I) As an elected official;
(II) As a member of a legislative body, or a member of the judiciary, of a state or political subdivision;
(III) As a member of the State National Guard or Air National Guard;
(IV) As an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency;
(V) In a position which, under or pursuant to the laws of this State, is designated as:
1. A major nontenured policymaking or advisory position, or
2. A policymaking or advisory position the performance of duties of which ordinarily does not require more than 8 hours per week; or
(iv) In a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury or of providing remunerative work for individuals who because of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market, such service performed by an individual receiving such rehabilitation or remunerative work; or
(v) As part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision thereof by an individual receiving such work relief or work training; or
(vi) Prior to January 1, 1978, for a hospital in a state prison or other state correctional institution and after December 31, 1977, by an inmate of a custodial or penal institution.
(E) The term “employment” shall include the service of an individual who is a citizen of the United States, performed outside the United States after December 31, 1971 (except in Canada, and in the case of the Virgin Islands after December 31, 1971, and prior to January 1 of the year following the year in which the United States Secretary of Labor approves the unemployed compensation law of the Virgin Islands under § 3304(a) [26 U.S.C. § 3304(a)] of the Internal Revenue Code of 1954), in the employ of an American employer (other than service which is deemed “employment” under paragraph (14)(H) or (I) of this section or the parallel provisions of another state’s law), if:
(i) The employer’s principal place of business in the United States is located in this State; or
(ii) The employer has no place of business in the United States, but
(I) The employer is an individual who is a resident of this State; or
(II) The employer is a corporation which is organized under the laws of this State; or
(III) The employer is a partnership or a trust and the number of partners or trustees who are residents of this State is greater than the number who are residents of any 1 other state; or
(iii) None of the criteria of paragraphs (14)(E)(i) and (ii) of this section is met but the employer has elected coverage in this State or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits based on such service under the law of this State.
(iv) An “American employer” for purposes of this paragraph means a person who is:
(I) An individual who is a resident of the United States; or
(II) A partnership if2/3or more of the partners are residents of the United States; or
(III) A trust, if all of the trustees are residents of the United States; or
(IV) A corporation organized under the laws of the United States or of any state.
(v) For purposes of this paragraph, the term “United States” includes the states, the District of Columbia and the Commonwealth of Puerto Rico.
(F) Notwithstanding paragraph (14)(H) of this section, all service performed after December 31, 1971, by an officer or member of a crew of an American vessel on or in connection with such vessel if the operating office from which the operation of such vessel operating on navigable waters within, or within and without, the United States is ordinarily and regularly supervised, managed, directed and controlled is within this State.
(G) Notwithstanding any other provisions of this paragraph (14), except as provided in paragraph (14)(A)(i) of this section, 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 assessments required to be paid into a state unemployment fund or which as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act [26 U.S.C. § 3301 et seq.] is required to be covered under this chapter.
(H) The term “employment” shall include an individual’s entire service, performed within, or both within and without, this State if the service is localized in this State. Service shall be deemed to be localized within this State if:
(i) The service is performed entirely within this State; or
(ii) The service is performed both within and without this State but the service performed without this State is incidental to the individual’s service within the State, for example, is temporary or transitory in nature or consists of isolated transactions.
(I) The term “employment” shall include an individual’s entire service, performed within, or both within or without, this State if the service is not localized in any state but some of the service is performed in this State and
(i) The individual’s base of operation is in this State; or
(ii) If there is no base of operations, then the place from which such service is directed or controlled is in this State; or
(iii) The individual’s base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual’s residence is in this State.
(J) Service covered by an election pursuant to § 3343 of this title shall be deemed to be employment during the effective period of the election.
(K) Notwithstanding any other provisions of this chapter and irrespective of whether the common-law relationship of employer and employee exists, services performed by an individual for wages, unless and until it is shown to the satisfaction of the Department that:
(i) Such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under the individual’s contract for the performance of services and in fact; and
(ii) Such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and
(iii) Such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.
(15) “Employment” does not include:
(A) Service performed by an individual in agricultural labor, except as provided in paragraph (15)(A)(vii) of this section. For purposes of this paragraph, the term “agricultural labor” means any service performed prior to January 1, 1972, which was agricultural labor as defined in this paragraph prior to such date, and remunerated service performed after December 31, 1971:
(i) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, bees, poultry and fur-bearing animals and wildlife;
(ii) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement or maintenance of such farm and its tools and equipment or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm;
(iii) In connection with the production or harvesting of any commodity defined as an agricultural commodity in § 15(g) of the Agricultural Marketing Act, as amended [12 U.S.C. § 1141j] or in connection with the ginning of cotton or in connection with the operation or maintenance of ditches, canals, reservoirs or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes;
(iv) (I) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity, but only if such operator produced more than1/2of the commodity with respect to which such service is performed;
(II) In the employ of a group of operators of farms (or a cooperative organization of which such operators are members) in the performance of service described in paragraph (15)(A)(iv)(I) of this section but only if such operators produced more than1/2of the commodity with respect to which such service is performed;
(III) Paragraphs (15)(A)(iv)(I) and (II) of this section shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption; or
(v) On a farm operated for profit if such service is not in the course of the employer’s trade or business.
(vi) As used in paragraph (15)(A) of this section the term “farm” includes stock, dairy, poultry, fruit, fur-bearing animals and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities and orchards.
(vii) The term “employment” shall include service performed after December 31, 1977, by an individual in agricultural labor when:
(I) Such service is performed for a person who:
1. During any calendar quarter in either the current or the preceding calendar year paid remuneration in cash of $20,000 or more to individuals employed in agricultural labor (not taking into account service in agricultural labor performed before January 1, 1980, by an alien referred to in paragraph (15)(A)(vii)(II) of this section, or
2. For some portion of a day in each of 20 different calendar weeks, whether or not such days were consecutive, in either the current or the preceding calendar year, employed in agricultural labor (not taking into account service in agricultural labor performed before January 1, 1980, by an alien referred to in paragraph (15)(A)(vii)(II) of this section) 10 or more individuals, regardless of whether they were employed at the same moment of time.
(II) Such service is not performed in agricultural labor if performed prior to January 1, 1980, by an individual who is an alien admitted to the United States to perform service in agricultural labor pursuant to §§ 214(c) and 101(a)(15)(H) of the Immigration and Nationality Act [8 U.S.C. § 1184(c) and 8 U.S.C. § 1101(a)(15)(H)].
(III) For purposes of this paragraph, 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 such crew leader:
1. If such crew leader holds a valid certificate of registration under the Farm Labor Contractor Registration Act of 1963 [former 7 U.S.C. § 2041 et seq. (See Revisor’s note)]; or substantially all the members of such crew operate or maintain tractors, mechanized harvesting or crop dusting equipment or any other mechanized equipment, which is provided by such crew leader; and
2. If such individual is not an employee of such other person within the meaning of paragraph (13)(A) of this section.
(IV) For the purpose of this subparagraph in the case of an individual who is furnished by a crew leader to perform services in agricultural labor for any other person and who is not treated as an employee of such crew leader under paragraph (15)(A)(vii)(II) of this section:
1. Such other person and not the crew leader shall be treated as the employer of such individual; and
2. Such other person shall be treated as having paid cash remuneration to such individual in an amount equal to the amount of cash remuneration paid to such individual by the crew leader (either on the person’s own behalf or on behalf of such other person) for the service in agricultural labor performed for such other person.
(V) For the purposes of this subparagraph, the term “crew leader” means an individual who:
1. Furnishes individuals to perform services in agricultural labor for any other person;
2. Pays (either on the person’s own behalf or on behalf of such other person) the individuals so furnished by the crew leader for the service in agricultural labor performed by them; and
3. Has not entered into a written agreement with such other person under which such individual is designated as an employee of such other person.
(B) Domestic service in a private home performed prior to January 1, 1978. After December 31, 1977, the term “employment” shall include domestic service in a private home, local college club or local chapter of a college fraternity or sorority performed for a person who paid cash remuneration of $1,000 or more after December 31, 1977, in the current calendar year or the preceding calendar year to individuals employed in such domestic service in any calendar quarter.
(C) Service performed by an individual in the employ of the individual’s child or spouse and service performed by a child under the age of 18 in the employ of the child’s parent.
(D) Service performed after December 31, 1971, in the employ of this State, or of any political subdivision or of any instrumentality of this State or its political subdivision except as provided in paragraph (14)(B) of this section.
(E) Service performed after December 31, 1971, in the employ of a corporation, community chest, fund or foundation organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary or educational purposes or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda or otherwise attempting to influence legislation and which does not participate in, or intervene in (including the publishing or distributing of statements) any political campaign on behalf of any candidate for public office, except as provided in paragraph (14)(C) of this section.
(F) Service with respect to which unemployment compensation is payable under an unemployment compensation system established by an act of Congress. The Department shall enter into agreements with the proper agencies under such act of Congress, which agreements shall become effective 10 days after publication thereof in the manner provided in § 3122 of this title for general rules and shall provide reciprocal treatment to individuals who have, after acquiring potential rights to benefits under this chapter, acquired rights to unemployment compensation under such act of Congress, or who have, after acquiring potential rights to unemployment compensation under such act of Congress, acquired rights to benefits under this chapter.
(G) Service performed by an officer of any building and loan association, fraternal order, society, labor union, political club or political organization service club, alumni association or any corporation, association, society or club organized and operated exclusively for social or civic purposes. The exemptions mentioned in this paragraph shall apply only when the service performed by the officer is a part-time service and only when the remuneration of the officer performing the part-time service does not exceed the sum of $75 in any calendar quarter in any calendar year.
(H) Service performed by an individual for an employer as an insurance agent or real estate agent, or as an insurance solicitor or real estate solicitor, if all such service performed by such individual for such employer is performed for remuneration solely by way of commissions.
(I) Service covered by an arrangement between the Department and the agency charged with the administration of any other state or federal unemployment compensation law pursuant to which all services performed by an individual for an employing unit during the period covered by such employing unit’s duly approved election are deemed to be performed entirely within such agency’s state.
(J) Service performed after December 31, 1971, in the employ of a school, college or university, if such service is performed by a student who is enrolled and is regularly attending classes at such school, college or university.
(K) Service performed after December 31, 1971, by an individual who is enrolled at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on as a student in a full-time program, taken for credit at such institution, which combines academic instruction with work experience, if such service is an integral part of such program and such institution has so certified to the employer, except that this subparagraph shall not apply to service performed in a program established for or on behalf of an employer or a group of employers.
(L) Service performed after December 31, 1971, in the employ of a hospital if such service is performed by a patient of the hospital, as defined in paragraph (18) of this section.
(M) Service performed after June 30, 1972, in the employ of this State or any of its political subdivisions by an elected official, an official appointed by the Governor or an official compensated on a fee basis.
(N) Service performed as a direct seller as defined in § 3508 of the Internal Revenue Code of 1954 [26 U.S.C. § 3508], as amended.
(16) “Employment office” means a free public employment office or branch thereof operated by this State or as a part of a state-controlled system of public employment offices or by a federal agency charged with the administration of an unemployment compensation program or free public employment offices.
(17) “Fund” means the Unemployment Compensation Fund established by this title to which all assessments required and from which all benefits provided under this chapter shall be paid.
(18) “Hospital” means an institution which has been licensed, certified or approved by the Department of Health and Social Services as a hospital.
(19) (A) “Institution of higher education,” for the purposes of this section, means an educational institution which:
(i) Admits as regular students only individuals having a certificate of graduation from a high school or the recognized equivalent of such a certificate;
(ii) Is legally authorized in this State to provide a program of education beyond high school;
(iii) Provides an educational program for which it awards a bachelor’s or higher degree, or provides a program which is acceptable for full credit toward such a degree, a program of postgraduate or postdoctoral studies or a program of training to prepare students for gainful employment in a recognized occupation; and
(iv) Is a public or other nonprofit institution.
(v) Notwithstanding any of the foregoing provisions of this paragraph (19), all colleges and universities in this State are institutions of higher education for purposes of this section.
(B) “Educational institution” (including an institution of higher education) is:
(i) One in which participants, trainees or students are offered an organized course of study or training designed to transfer to them knowledge, skills, information, doctrines, attitudes or abilities from, by or under the guidance of an instructor or teacher; and
(ii) Approved, licensed or issued a permit to operate as a school by the State Department of Education or other governmental agency that is authorized within the State to approve, license or issue a permit for the operations of a school; and
(iii) The courses of study or training which it offers may be academic, technical, trade or preparation for gainful employment in a recognized occupation.
(20) “New employer” means any employer from the time the employer first becomes subject to this chapter until the employer qualifies for an earned rate of assessment pursuant to § 3350 or § 3350A of this title. “New employer” does not include an employer who pays reimbursement payments in lieu of assessments pursuant to § 3345(b) of this title.
(21) “New employer rate” means the rate of assessments assigned to a new employer under § 3348 of this title.
(22) “Rated employer” means an employer that is liable for an earned rate of assessment under § § 3350 and 3350A of this title. “Rated employer” does not include an employer subject to a new employer rate under § 3348 of this title.
(23) “Regular benefits” means benefits payable to an individual under this chapter or under any other state law (including benefits payable to federal civilian employees and to ex-service persons pursuant to 5 U.S.C. Chapter 85) other than additional and extended benefits.
(24) “States” includes, in addition to the states of the United States of America, the District of Columbia, the Commonwealth of Puerto Rico and Virgin Islands.
(25) “Taxable wages” means the amount of remuneration with respect to employment paid to an individual by an employer or the employer’s predecessor on which unemployment insurance assessments must be paid, pursuant to paragraphs (27) and (28)(B) of this section, up to the limits set forth in paragraph (28)(A) of this section.
(26) “Unemployment” exists and an individual is “unemployed” in any week during which the individual performs no services and with respect to which no wages are payable to the individual, or in any week of less than full-time work if the wages payable to the individual with respect to such week are less than the individual’s weekly benefit amount plus whichever is the greater of $10 or 50% of the individual’s weekly benefit amount. The Department shall prescribe regulations applicable to unemployed individuals making such distinctions in the procedures as to total unemployment, part-total unemployment, partial unemployment of individuals attached to their regular jobs and other forms of short-time work as the Department deems necessary.
(27) “Wages” means all remuneration for personal services, including commissions, bonuses, dismissal payments, holiday pay, back pay awards and the cash value of all remuneration in any medium other than cash.
Gratuities customarily received by an individual in the course of the individual’s work from persons other than the individual’s employing unit shall be treated as wages received from the individual’s employing unit.
The reasonable cash value of remuneration in any medium other than cash and the reasonable amount of gratuities shall be estimated and determined in accordance with rules prescribed by the Department.
(28) “Wages” does not include:
(A) For the purpose of §§ 3345 and 3348 of this title:
(i) After December 31, 1982, that part of the remuneration which, after remuneration equal to $7,200 with respect to employment during any calendar year, is paid to an individual by an employer or the employer’s predecessor during such calendar year; or
(ii) After December 31, 1983, that part of the remuneration which, after remuneration equal to $8,000 (or such greater amount as may be specified as the taxable wage base in the Federal Unemployment Tax Act [26 U.S.C. § 3301 et seq.]) with respect to employment during any calendar year, is paid to an individual by an employer or the employer’s predecessor during such calendar year; or
(iii) After December 31, 1985, that part of the remuneration which, after remuneration equal to $8,250 (or such greater amount as may be specified as the taxable wage base in the Federal Unemployment Tax Act [26 U.S.C. § 3301 et seq.]) with respect to employment during any calendar year, is paid to an individual by an employer or the employer’s predecessor during such calendar year; or
(iv) After December 31, 1986, that part of the remuneration which, after remuneration equal to $8,500 (or such greater amount as may be specified as the taxable wage base in the Federal Unemployment Tax Act [26 U.S.C. § 3301 et seq.]) with respect to employment during any calendar year, is paid to an individual by an employer or the employer’s predecessor during such calendar year; or
(v) After December 31, 2007, that part of the remuneration which, after remuneration equal to $10,500 (or such greater amount as may be specified as the taxable wage base in the Federal Unemployment Tax Act [26 U.S.C. § 3301 et seq.]) with respect to employment during any calendar year, is paid to an individual by an employer or the employer’s predecessor during such calendar year; or
(vi) After December 31, 2013, that part of the remuneration which, after remuneration equal to $18,500 (or such greater amount as may be specified as the taxable wage base in the Federal Unemployment Tax Act (26 U.S.C. § 3301 et seq.)) with respect to employment during any calendar year, is paid to an individual by an employer or the employer’s predecessor during such calendar year if the balance in the Unemployment Insurance Trust Fund, as certified by the Director of Unemployment Insurance to the Secretary of Labor, is $125.0 million or less as of the preceding September 30; or that part of the remuneration which, after remuneration equal to $16,500 (or such greater amount as may be specified as the taxable wage base in the Federal Unemployment Tax Act (26 U.S.C. § 3301 et seq.)) with respect to employment during any calendar year, is paid to an individual by an employer or the employer’s predecessor during such calendar year if the balance in the Unemployment Insurance Trust Fund, as certified by the Director of Unemployment Insurance to the Secretary of Labor, is greater than $125.0 million, but less than $175.0 million as of the preceding September 30; or that part of the remuneration which, after remuneration equal to $14,500 (or such greater amount as may be specified as the taxable wage base in the Federal Unemployment Tax Act (26 U.S.C. § 3301 et seq.)) with respect to employment during any calendar year, is paid to an individual by an employer or the employer’s predecessor during such calendar year if the balance in the Unemployment Insurance Trust Fund, as certified by the Director of Unemployment Insurance to the Secretary of Labor, is at least $175.0 million, but no greater than $ 225.0 million as of the preceding September 30; or that part of the remuneration which, after remuneration equal to $12,500 (or such greater amount as may be specified as the taxable wage base in the Federal Unemployment Tax Act (26 U.S.C. § 3301 et seq.)) with respect to employment during any calendar year, is paid to an individual by an employer or the employer’s predecessor during such calendar year if the balance in the Unemployment Insurance Trust Fund, as certified by the Director of Unemployment Insurance to the Secretary of Labor, is greater than $225.0 million, but less than $275.0 million as of the preceding September 30; or that part of the remuneration which, after remuneration equal to $10,500 (or such greater amount as may be specified as the taxable wage base in the Federal Unemployment Tax Act (26 U.S.C. § 3301 et seq.)) with respect to employment during any calendar year, is paid to an individual by an employer or the employer’s predecessor during such calendar year if the balance in the Unemployment Insurance Trust Fund, as certified by the Director of Unemployment Insurance to the Secretary of Labor, is $275.0 million or greater as of the preceding September 30; or
(vii) After December 31, 2024, to December 31, 2025, that part of the remuneration which, after remuneration equal to $12,500 (or such greater amount as may be specified as the taxable wage base in the Federal Unemployment Tax Act (26 U.S.C. § 3301 et seq.)) with respect to employment during any calendar year, is paid to an individual by an employer or the employer’s predecessor during such calendar year; or
(viii) After December 31, 2025, to December 31, 2026, that part of the remuneration which, after remuneration equal to $14,500 (or such greater amount as may be specified as the taxable wage base in the Federal Unemployment Tax Act (26 U.S.C. § 3301 et seq.)) with respect to employment during any calendar year, is paid to an individual by an employer or the employer’s predecessor during such calendar year; or
(ix) After December 31, 2026, that part of the remuneration which, after remuneration equal to $16,500 (or such greater amount as may be specified as the taxable wage base in the Federal Unemployment Tax Act (26 U.S.C. § 3301 et seq.)) with respect to employment during any calendar year, is paid to an individual by an employer or the employer’s predecessor during such calendar year.
(x) For the purpose of this paragraph, the term “employment” shall include service constituting employment under any unemployment compensation law of another state.
(xi) Notwithstanding any other provisions in this section, from July 1, 2019, to October 29, 2020, “wages” does not include that part of the remuneration which, after remuneration equal to $16,500 (or such greater amount as may be specified as the taxable wage base in the Federal Unemployment Tax Act (26 U.S.C. § 3301 et seq.)) with respect to employment during any calendar year, is paid to an individual by an employer or the employer’s predecessor during such calendar year.
(xii) Notwithstanding any other provisions in this section, from January 1, 2022, to December 31, 2022, “wages” does not include that part of the remuneration which, after remuneration equal to $14,500 (or such greater amount as may be specified as the taxable wage base in the Federal Unemployment Tax Act (26 U.S.C. § 3301 et seq.)) with respect to employment during any calendar year, is paid to an individual by an employer or the employer’s predecessor during such calendar year.
(B) The amount of any payment with respect to services performed after December 31, 1940, to or on behalf of an individual in its employ under a plan or system established by an employing unit which makes provision for individuals in its employ generally or for a class or classes of such individuals (including any amount paid by an employing unit for insurance or annuities or into a fund to provide for any such payment) on account of:
(i) Retirement; or
(ii) Sickness or accident disability; or
(iii) Medical and hospitalization expenses in connection with sickness or accident disability; or
(iv) Death, provided the individual in its employ:
(I) Has not the option to receive instead of provision for such death benefit any part of such payment or if such death benefit is insured any part of the premiums (or contributions to premiums) paid by the individual’s employing unit, and
(II) Has not the right, under the provisions of the plan or system or policy of insurance providing for such death benefit, to assign such benefit or to receive a cash consideration in lieu of such benefit either upon withdrawal from the plan or system providing for such benefit or upon termination of such plan or system or policy of insurance or of the individual’s services with such employing unit.
(C) The payment by an employing unit (without deduction from the remuneration of the individual in its employ) of the tax imposed upon an individual in its employ under § 3101 of the Federal Internal Revenue Code [26 U.S.C. § 3101] with respect to services performed after December 31, 1954.
(D) Vacation pay paid during or incident to any period of unemployment.
(E) Any attendance bonus paid during or incident to any period of unemployment.
(F) Payments to an employee under Chapter 19 of this title by an employer who has failed to provide the advance notice of a mass layoff, plant closing or relocation that is required by Chapter 19 of this title or the federal Worker Adjustment and Retraining Notification Act (29 U.S.C. § 2101 et seq.) shall not be construed as wages. Unemployment insurance benefits under this title may not be denied or reduced because of the receipt of payments related to an employer’s violation of Chapter 19 of this title or the federal Worker Adjustment and Retraining Notification Act (29 U.S.C. § 2101 et seq.).
(29) “Week” means calendar week, ending at midnight Saturday, but all work performed and wages earned during a working shift which starts before midnight Saturday shall be included in the week in which such shift begins. For purposes of partial claims and mass layoff claims, the Department may authorize the employer’s payroll week.
(30) “Work” means service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied.
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Cite This Page — Counsel Stack
Delaware § 3302, Counsel Stack Legal Research, https://law.counselstack.com/statute/de/19/3302.