CHAPTER 186

FORMERLY

HOUSE BILL NO. 596

AS AMENDED BY

HOUSE AMENDMENT NO. 1 AND

SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 33, TITLE 19, DELAWARE CODE, RELATING TO UNEMPLOYMENT COMPENSATION.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Section 3302, Chapter 33, Title 19, Delaware Code, by striking subparagraph (7) (A) in its entirety and substituting in lieu thereof a new subparagraph (7) (A) to read as follows:

"(7) 'Employer' means:

(A) (1) Any employing unit which after December 31, 1971,

(I) In any calendar quarter in either the current or preceeding 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 one (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 Section 3302 (10) (A) (vii) is performed after December 31, 1977;

(i) Any employing unit for which domestic service as defined in Section 3302 (10) (B) is performed after December 31, 1977;

(ii) (I) In determining whether or not an employing unit for which service other than domestic service is also performed as an employer under subparagraphs (1) and (ii) of this paragraph (A) 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 subparagraphs (1) and (iii) of this paragraph (A), the wages earned or the employment of an

employee performing service in agricultural labor after December 31, 1977, shall not be takn 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 subparagraph (i) of this paragraph (A);"

Section 2. Further amend Section 3302, Chapter 33, Title 19, Delaware Code, by striking subparagraph (7) (B) in its entirety and substituting in lieu thereof a new subparagraph (9) (B) to read as follows:

"(B) Any employing unit for which service in employment as defined in Section 3302 (9) (B) is performed."

Section 3. Further amend Section 3302, Chapter 33, Title 19, Delaware Code, by adding a new sentence following the first sentence of subparagraph (8) (A) to read as follows:

"Employing unit also means any governmental entity which has in its employ individuals performing services."

Section 4. Further amend Section 3302, Chapter 33, Title 19, Delaware Code, by striking the period at the end of subparagraph (8) (B) and adding the following clause:

", except as provided in Section 3302 (10) (A) (vii)."

Section 5. Further amend Section 3302, Chapter 33, Title 19, Delaware Code, by striking from subparagraph (9) (A) the dates "January 1. 1972" and "December 31, 1971", and substituting, in lieu thereof the dates "January 1, 1978" and "December 31, 1977", respectively.

Section 6. Further amend Section 3302, Chapter 33, Title 19, Delaware Code, by adding the words "and before January 1, 1978" before the words "by an individual in the employ of this State" as it appears in subparagraphs (9) (B) (i) and (ii).

Section 7. Further amend Section 3302, Chapter 33, Title 19, Delaware Code, by adding thereto a new subparagraph (9) (B) (iii) to read as follows:

"(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 intrumentalities or any instrumentality of more than one of the foregoing or any instrumentality of any of the forgoing and one 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 and is not excluded from 'employment' under §3302 (9) (D) (iii) of this Title."

Section 8. Further amend Section 3302, Chapter 33, Title 19, Delaware Code, by striking subparagraph (9) (D) (iii) in its entirety and substituting in lieu thereof a new subparagraph (9) (D) (iii) to read as follows:

"(iii) Prior to January 1, 1978, in the employ of a school which is not an instutition of higher education, after December 31, 1977, in the employ of a governmental entity referred to in 33302 (9) (B) (iii) if such service is performed by an individual in the exercise of duties:

(1) 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;

(I) 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 eight hours per week; or ".

Section 9. Further amend Section 3302, Chapter 33, Title 19, Delaware Code, by striking in its entirety subparagraph (9) (D) (vi) and substituting in lieu thereof a new subparagraph (9) (D) (vi) to read as follows:

"(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."

Section 10. Further amend Section 3302, Chapter 33, Title 19, Delaware Code, by striking in.its entirety the first paragraph of subparagraph (9) (E) and substituting in lieu thereof a new paragraph to read as follows:

"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 U. S. Secretary of Labor approves the unemployment compensation law of the Virgin Islands under §3304 (a) of the Internal Revenue Code of 1954), in the employ of an American employer (other than service which is deemed 'employment' under the provisions of paragraphs (H) or (I) of this subsection or the parallel provisions of another State's law), if:"

Section 11. Further amend Section 3302, Chapter 33, Title 19, Delaware Code, by striking the period (.) following the first sentence in subparagraph (10) (A) and substituting in lieu thereof the following clause:

", except as provided in subparagraph (vii) of this paragraph."

Section 12. Further amend Section 3302, Chapter 33, Title 19, Delaware Code, by inserting a period (.) after the word "business" in subparagraph (10) (A) (v) and striking the remainder of this subparagraph in its entirety.

Section 13. Further amend Section 3302, Chapter 33, Title 19, Delaware Code, by adding to subparagraph (10) (A) a new subparagraph (vii) to read as follows:

"(vii) The term 'employment' shall include service performed after December 31, 1977, by an individual in agricultural labor when:

(1) 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 division (II) of this subparagraph,

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 division (II) of this subparagraph) 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 sections 214 (c) and 101 (a) (15) (11) of the Immigration and Nationality Act.

(III) for purposes of this paragraph (A), 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; 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 §3302 (9) (A).

(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 subparagraph (III):

(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 his own 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 his own behalf or on behalf of such other person) the individuals so furnished by him 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."

Section 14. Further amend Section 3302, Chapter 33, Title 19, Delaware Code, by striking subparagraph (10) (B) in its entirety and substituting in lieu thereof the following:

"(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."

Section 14 (a). Amend Section 3302, Chapter 33, Title 19, Delaware Code, by striking the period following the word 'year"

at the end of subparagraph (ii) of Subsection (18) (A), and inserting in lieu thereof a semicolon and the word "or" (; or), and inserting between subparagraph (ii) and the paragraph beginning "The remuneration paid to an individual by an employer", a new subparagraph (iii) to read as follows:

"(iii) After December 31, 1977, the part of the remuneration

which, after remuneration equal to $6,000 is paid to such individual by such employer during such calendar year."

Section 14. (b). Further amend Section 3302, Chapter 33, Title 19, Delaware Code, by striking the final period at the end of subsection (18) (A), and inserting the following:

"or $6,000 referred to in subparagraph (iii)."

Section 15. Amend Section 3313, Chapter 33, Title 19, Delaware Code, by adding a new subsection (g) to read as follows:

"(g) With respect to weeks of unemployment beginning on or after January 1, 1978, wages for employment shall include

wages paid for previously uncovered services. For purposes of this subsection, the term 'perviously uncovered services' means services:

(1) which were not employment as defined in 43302 (10) and were not services covered pursuant to 53302 (9) at any time during the one-year period ending December 31, 1975; and

(2) which:

(i) are agricultural labor as defined in 13302 (10) (A) (vii) or domestic service as defined in 43302 00) (B) or

(ii) are services performed by an employee of this State or a political subdivision thereof, as provided in §3302 (9) (B) (iii). or by an employee of a non-profit educational institution which is not an institution of higher education as provided in §3302 (9) (D) (iii); except to the extent that assistance under Title II of the Emergency Jobs and Unemployment Assistance Act of 1974 was paid on the basis of such services."

Section 16. Amend Section 3314, Chapter 33, Title 19, Delaware Code, by redesignating subparagraph (6) as subparagraph (6) (A) and adding a new subparagraph (6) (B) to read as follows:

"(B) Benefits based on service in employment defined in §3302 (9) (B) (iii) and (J) of this Title 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 subject to this Act; except that, with respect to service performed after December 31, 1977, in an instructional, research, or principal administrative capacity for an educational institution, benefits shall not be paid based on such services for any week of unemployment commencing during the period between two successive academic years, or during a similar period between two regular but not successive terms, or during a period of paid sabbatical leave provided for in the individual's contract, to any individual if such individual performs such services in the first of such academic years (or terms) and if there is a contract or a reasonable assurance that such individual will perform service in any such capacity for any educational institution in the second of such academic years or terms. Subsection 3314 (6) (A) shall apply with respect to such services prior to January 1, 1978."

Section 17. Further amend Section 3314, Chapter 33, Title 19, Delaware Code, by adding a new subparagraph (6) (C) to read as follows:

"(C) With respect to services performed after December 31, 1977, in any other capacity for an educational institution (other than an institution of higher education as defined in 43302 (14), benefits shall not be paid on the basis of such services to an individual for any week which commences during a period between two successive academic years or terms if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance what such individual will perform such services in the second of such academic years or terms."

Section 18. Amend Section 3315, Chapter 33, Title 19, Delaware Code, by placing a period after the word "work" in the first sentence of subparagraph (8), and deleting the clause "because of pregnancy".

Section 19. Further amend Section 3315, Chapter 33, Title 19, Delaware Code, by adding a new subparagraph (9) to read as follows:

"(9) Benefits shall not be paid to any individual on the basis of any services, substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, for any week which commences during the period between two successive sport seasons (or similar periods) if such individual performed such services in the first of such seasons (or similar periods) and there is a reasonable assurance that such individual will perform such services in the latter of such seasons (or similar periods)."

Section 20. Further amend Section 3315, Chapter 33, Title 19, Delaware Code, by adding a new subparagraph (10) to read as follows:

"(1) (A) Benefits shall not be paid on the basis of services performed by an alien unless such alien is an individual who has been lawfully admitted for permanent residence or otherwise is permanently residing in the United States as a result of the application of the provisions of Section 203 (a) (7) or Section 212 (d) (5) of the Immigration and Nationality Act.

(B) Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits.

(C) In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of his alien status shall be made except upon a preponderance of the evidence."

Section 21. Amend Section 3326, Chapter 33, Title 19, Delaware Code, by striking subparagraph (a) (2) in its entirety and inserting in lieu thereof the following:

"(2) There is a national 'on' indicator for a week, for the period consisting of such week and the immediately preceding

twelve weeks, the rate of insured unemployment (seasonally adjusted) for all States equalled or exceeded 4.5 percent. The rate of insured unemployment after Demcember 31, 1976, for purposes of this subsection, shall be determined by the United States Secretary of Labor by reference to the average monthly covered unemployment for the first four of the most recent six calendar quarters ending before the close of such period."

Section 22. Further amend Section 3326, Chapter 33, Title 19, Delaware Code, by striking subparagraph (a) (3) in its entirety and inserting in lieu thereof the following:

"(3) There is a national 'off' indicator for a week if, for the period consisting of such week and the immediately preceding twelve weeks, the rate of insured unemployment (seasonally adjusted) for all States was less than 4.5 percent. The rate of insured unemployment after December 31, 1976 for the purposes of this subsection. shall be determined by the United States Secretary of Labor by reference to the average monthly employment for the first four of the most recent six calendar quarters ending before the close of such period."

Section 23. Further amend Section 3326, Chapter 33, Title 19, ralaware Code, by striking subparagraph (a) (4) in its entirety and inserting in lieu thereof the following:

"(4) There is a State 'on' indicator for a week after March 31, 1977 if the rate of insured unemployment under the State law for the period consisting of such week and the immediately preceding twelve weeks:

(A) equalled or exceeded 120 percent of the average of such rates for the corresponding thirteen week period ending in each of the preceding two calendar years, and

(B) equalled or exceeded four percent (4%)."

Section 24. Further amend Section 3326, Chapter 33, Title 19, Delaware Code, by striking subparagraph (a) (5) in its entirety and inserting in lieu thereof the following:

"(5) There is a State 'off' indicator for a week after March 31, 1977, if, for the period consisting of such week and the immediately preceding twelve weeks either subparagraph (A) or (B) or paragraph (4) was not satisfied."

Section 25. Amend Section 3345, Chapter 33, Title 19, Delaware Code, by striking the period (.) after the word "year" in subsection (b) and inserting in lieu thereof a semi-colon and by striking the last sentence of said subsection in its entirety and inserting in lieu thereof the following:

"and (iii) subsequent to December 31, 1977, wages shall not include that part of remuneration which, after remuneration equal to $6,000 has been paid in a calendar year to an individual by an employer or his predecessor with respect to employment during any calendar year, is paid to such individual by such employer during such calendar year unless that part of the remuneration is subject to a tax under a Federal law imposing a tax against which credit may be taken for assessments required to be paid into a state unemployment fund. For purposes of this subsection, the term 'employment' shall include service constituting employment under any unemployment compensation law of another state."

Section 26. Further amend Section 3345, Chapter 33, Title 19, Delaware Code, by adding to subsection (c) of said section a new subparagraph (3) (G) to read as follows:

"(G) Any employer which elects to make payments in lieu of contributions into the unemployment compensation fund as provided in this paragraph shall not be liable to make such payments with respect to the benefits paid to any individual whose base period wages include wages for previously uncovered services as defined in §3313 (g) to the extent that the unemployment compensation fund is reimbursed for such benefits pursuant to Section 121 of PL 94-566."

Section 27. Further amend Section 3345, Chapter 33, Title 19, Delaware Code, by redesignating subparagraph (c) (5) of said subsection as subparagraph (c) (5) (A) and by redesignating subparagraphs

(A) and (B) of said subparagraph (c) (5) (A) as subparagraphs (i) and (ii).

Section 28. Further amend Section 3345, Chapter 33, Title 19, Delaware Code, by adding to subsection (c) a new subparagraph (7) (A) to read as follows:

"(7) (A) Notwithstanding any other provisions of the Unemployment Compensation Law for the payment of assessments, any governmental entity or instrumentality, may as an alternate

to financing benefits in payment in lieu of assessments, elect to pay assessments beginning with the date on which subjectivity begins by filing written notice of its election with the Department no later than 120 days after such subjectivity begins; provided that such election shall be effective for a least two full calendar years; or it may elect to pay assessments for a period of not less than two calendar years beginning January 1 of any year if written notice of such election is filed with the Department not later than February 1 of such year; provided further that such governmental entity or instrumentality shall remain liable for payments in lieu of assessments with respect to all benefits paid based on base period wages earned in the employ of such entity or instrumentality in the period during which it financed its benefits in lieu of assessments as provided in subparagraph (1) of this subsection."

Section 29. Further amend Section 3345, Chapter 33, Title 19, Delaware Code, by adding to subsection (c) a new subparagraph (7)

(B) to read as follows:

"(7) (B) Any governmental entity or instrumentality may terminate its election to pay assessments as of January 1, of any year by filing written notice with the Department not later than February 1 of any year with respect to which termination is to become effective. It may not revert to an assessment method of financing for a least two full calendar years after such termination."

Section 30. Further amend Section 3345, Chapter 33, Title 19, Delaware Code, by adding to subsection (c) a new subparagraph (7)

(C) to read as follows:

"(7) (C) Any governmental entity, or instrumentality electing the option for assessment financing will report and pay assessments in accordance with §3345 (a), §3348 and §3350 of this Chapter, except that notwithstanding the provision of the above sections, the assessment rate shall be one percent (1%) for the entire calendar year 1978 and the assessment rate for any subsequent calendar years shall be the rate established for such governmental entity or instrumentality under §3345 (c) (7) (D) of this section."

Section 31. Further amend Section 3345, Chapter 33, Title 19, Delaware Code, by adding to subsection (c) a new subparagraph (7)

(D) to read as follows:

"(7) (D) On or before September 1 of each year beginning with September 1, 1979, the Department shall review the composite benefit cost experience of all governmental entities and instrumentalities and, on the basis of that experience, establish the assessment rate for the next following calendar year which can be expected to yield sufficient revenue to equal or exceed the projected benefit costs for that calendar year."

Section 32. If any provision of the Act of Congress known as Public Law 94-566, which mandates coverage of governmental entities as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, is held unconstitutional or null and void by the United States Supreme Court, said coverage provided in this Chapter shall terminate if not elected, thereafter, coverage of governmental entities shall become elective pursuant to Section 3343 of this Chapter.

Section 33. Amend Section 3313, Chapter 33, Title 19, Delaware Code, by striking the figure "1978" as the same appears in subparagraph (b) (2) d. and substituting in lieu thereof the figure "1981".

Approved August 12, 1977.