ENGROSSED
Senate Bill No. 688
(By Senator Bowman)
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[Introduced February 23, 2004; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §21A-1A-17 of the code of West
Virginia, 1931, as amended, relating to the amount of wages an
election official can receive in a calendar year that are not
considered employment wages for unemployment compensation
purposes.
Be it enacted by the
Legislature of West Virginia:
That §21A-1A-17 of the code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1A. DEFINITIONS.
§21A-1A-17. Exclusions from employment.
The term "employment" does not include:
(1) Service performed in the employ of the United States or any
instrumentality of the United States exempt under the constitution
of the United States from the payments imposed by this law, except that to the extent that the congress of the United States permits
states to require any instrumentalities of the United States to
make payments into an unemployment fund under a state unemployment
compensation law, all of the provisions of this law are applicable
to the instrumentalities and to service performed for the
instrumentalities in the same manner, to the same extent and on the
same terms as to all other employers, employing units, individuals
and services:
Provided, That if this state is not certified for
any year by the secretary of labor under 26 U. S. C. §3404,
subsection (c), the payments required of the instrumentalities with
respect to the year shall be refunded by the commissioner from the
fund in the same manner and within the same period as is provided
in section nineteen, article five of this chapter with respect to
payments erroneously collected;
(2) Service performed with respect to which unemployment
compensation is payable under the Railroad Unemployment Insurance
Act and service with respect to which unemployment benefits are
payable under an unemployment compensation system for maritime
employees established by an act of congress. The commissioner may
enter into agreements with the proper agency established under an
act of congress to provide reciprocal treatment to individuals who,
after acquiring potential rights to unemployment compensation under
an act of congress or who have, after acquiring potential rights to
unemployment compensation under an act of congress, acquired rights to benefit under this chapter. Such agreement shall become
effective ten days after the publications which shall comply with
the general rules of the department;
(3) Service performed by an individual in agricultural labor,
except as provided in subdivision (12), section sixteen of this
article, the definition of "employment". For purposes of this
subdivision, the term "agricultural labor" includes all services
performed:
(A) 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;
(B) 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 the 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 the service is performed
on a farm;
(C) In connection with the production or harvesting of any
commodity defined as an agricultural commodity in section fifteen
(g) of the Agricultural Marketing Act, as amended, as codified in
12 U. S. C. §1141j, subsection (g), 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;
(D) (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 the
operator produced more than one half of the commodity with respect
to which the service is performed; or (ii) in the employ of a group
of operators of farms (or a cooperative organization of which the
operators are members) in the performance of service described in
subparagraph (i) of this paragraph, but only if the operators
produced more than one half of the commodity with respect to which
the service is performed; but the provisions of this subparagraph
and subparagraph (i) of this paragraph are not 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;
(E) On a farm operated for profit if the service is not in the
course of the employer's trade or business or is domestic service
in a private home of the employer. As used in this subdivision,
the term "farm" includes stock, dairy, poultry, fruit, fur-bearing animals, truck farms, plantations, ranches, greenhouses, ranges and
nurseries or other similar land areas or structures used primarily
for the raising of any agricultural or horticultural commodities;
(4) Domestic service in a private home except as provided in
subdivision (13), section sixteen of this article, the definition
of "employment";
(5) Service performed by an individual in the employ of his or her
son, daughter or spouse;
(6) Service performed by a child under the age of eighteen years
in the employ of his or her father or mother;
(7) Service as an officer or member of a crew of an American
vessel, performed on or in connection with the vessel, if the
operating office, from which the operations of the vessel operating
on navigable waters within or without the United States are
ordinarily and regularly supervised, managed, directed and
controlled, is without this state;
(8) Service performed by agents of mutual fund broker-dealers or
insurance companies, exclusive of industrial insurance agents, or
by agents of investment companies who are compensated wholly on a
commission basis;
(9) Service performed: (A) In the employ of a church or
convention or association of churches, or 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 (B) by a duly ordained,
commissioned or licensed minister of a church in the exercise of
his or her ministry or by a member of a religious order in the
exercise of duties required by the order; or (C) by an individual
receiving rehabilitation or remunerative work in a facility
conducted for the purpose of carrying out a program of either: (i)
Rehabilitation for individuals whose earning capacity is impaired
by age or physical or mental deficiency or injury; or (ii)
providing remunerative work for individuals who because of their
impaired physical or mental capacity cannot be readily absorbed in
the competitive labor market:
Provided, That this exemption does
not apply to services performed by individuals if they are not
receiving rehabilitation or remunerative work on account of their
impaired capacity; or (D) 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 the work relief or work
training; or (E) by an inmate of a custodial or penal institution;
(10) Service performed in the employ of a school, college or
university, if the service is performed: (A) By a student who is
enrolled and is regularly attending classes at the school, college
or university; or (B) by the spouse of a student, if the spouse is
advised, at the time the spouse commences to perform the service,
that: (i) The employment of the spouse to perform the service is provided under a program to provide financial assistance to the
student by the school, college or university; and (ii) the
employment will not be covered by any program of unemployment
insurance;
(11) Service performed 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 the institution, which
combines academic instruction with work experience, if the service
is an integral part of the program and the institution has so
certified to the employer, except that this subdivision does not
apply to service performed in a program established for or on
behalf of an employer or group of employers;
(12) Service performed in the employ of a hospital, if the service
is performed by a patient of the hospital, as defined in this
article;
(13) Service in the employ of a governmental entity referred to
in subdivision (9), section sixteen of this article, the definition
of "employment", if the service is performed by an individual in
the exercise of duties: (A) As an elected official; (B) as a
member of a legislative body, or a member of the judiciary, of a
state or political subdivision; (C) as a member of the state national guard or air national guard, except as provided in section
twenty-eight of this article; (D) as an employee serving on a
temporary basis in case of fire, storm, snow, earthquake, flood or
similar emergency; (E) in a position which, under or pursuant to
the laws of this state, is designated as: (i) A major nontenured
policymaking or advisory position; or (ii) a policymaking or
advisory position the performance of the duties of which ordinarily
does not require more than eight hours per week; or (F) as any
election official appointed to serve during any municipal, county
or state election, to serve during any municipal, county or state
election,
if the amount of remuneration received by the individual
during the calendar year for services as an election official or
election worker is less than one thousand dollars;
(14) Service performed by a bona fide partner of a partnership for
the partnership; and
(15) Service performed by a person for his or her own sole
proprietorship.
Notwithstanding the foregoing exclusions from the definition of
"employment", services, except agricultural labor and domestic
service in a private home, are in employment if, with respect to
the services, 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 a state unemployment compensation fund or
which as a condition for full tax credit against the tax imposed by the federal Unemployment Tax Act are required to be covered under
this chapter.