HB 2022--Am. by SCW
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[As Amended by Senate Committee of the
Whole]
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As Amended by Senate Committee
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As Amended by House Committee
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Session of 1997
HOUSE BILL No. 2022
By Representative Lane
1-17
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14 AN ACT concerning the employment security law; relating to direct sell-
15 ers; amending K.S.A. 1996 Supp. 44-703 [and 44-706] and repealing
16 the existing section [sections].
17
18 Be it enacted by the Legislature of the State of Kansas:
19 Section 1. K.S.A. 1996 Supp. 44-703 is hereby amended to read as
20 follows: 44-703. As used in this act, unless the context clearly requires
21 otherwise:
22 (a) (1) ``Annual payroll'' means the total amount of wages paid or
23 payable by an employer during the calendar year.
24 (2) ``Average annual payroll'' means the average of the annual payrolls
25 of any employer for the last three calendar years immediately preceding
26 the computation date as hereinafter defined if the employer has been
27 continuously subject to contributions during those three calendar years
28 and has paid some wages for employment during each of such years. In
29 determining contribution rates for the calendar year, if an employer has
30 not been continuously subject to contribution for the three calendar years
31 immediately preceding the computation date but has paid wages subject
32 to contributions during only the two calendar years immediately preced-
33 ing the computation date, such employer's ``average annual payroll'' shall
34 be the average of the payrolls for those two calendar years.
35 (3) ``Total wages'' means the total amount of wages paid or payable
36 by an employer during the calendar year, including that part of remu-
37 neration in excess of the limitation prescribed as provided in subsection
38 (o)(1) of this section.
39 (b) ``Base period'' means the first four of the last five completed cal-
40 endar quarters immediately preceding the first day of an individual's ben-
41 efit year, except that the base period in respect to combined wage claims
42 means the base period as defined in the law of the paying state.
43 (c) (1) ``Benefits'' means the money payments payable to an individ-
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1 ual, as provided in this act, with respect to such individual's unemploy-
2 ment.
3 (2) ``Regular benefits'' means benefits payable to an individual under
4 this act or under any other state law, including benefits payable to federal
5 civilian employees and to ex-servicemen pursuant to 5 U.S.C. chapter 85,
6 other than extended benefits.
7 (d) ``Benefit year'' with respect to any individual, means the period
8 beginning with the first day of the first week for which such individual
9 files a valid claim for benefits, and such benefit year shall continue for
10 one full year. In the case of a combined wage claim, the benefit year shall
11 be the benefit year of the paying state. Following the termination of a
12 benefit year, a subsequent benefit year shall commence on the first day
13 of the first week with respect to which an individual next files a claim for
14 benefits. When such filing occurs with respect to a week which overlaps
15 the preceding benefit year, the subsequent benefit year shall commence
16 on the first day immediately following the expiration date of the preceding
17 benefit year. Any claim for benefits made in accordance with subsection
18 (a) of K.S.A. 44-709 and amendments thereto shall be deemed to be a
19 ``valid claim'' for the purposes of this subsection if the individual has been
20 paid wages for insured work as required under subsection (e) of K.S.A.
21 44-705 and amendments thereto. Whenever a week of unemployment
22 overlaps two benefit years, such week shall, for the purpose of granting
23 waiting-period credit or benefit payment with respect thereto, be deemed
24 to be a week of unemployment within that benefit year in which the
25 greater part of such week occurs.
26 (e) ``Commissioner'' or ``secretary'' means the secretary of human re-
27 sources.
28 (f) (1) ``Contributions'' means the money payments to the state em-
29 ployment security fund which are required to be made by employers on
30 account of employment under K.S.A. 44-710 and amendments thereto,
31 and voluntary payments made by employers pursuant to such statute.
32 (2) ``Payments in lieu of contributions'' means the money payments
33 to the state employment security fund from employers which are required
34 to make or which elect to make such payments under subsection (e) of
35 K.S.A. 44-710 and amendments thereto.
36 (g) ``Employing unit'' means any individual or type of organization,
37 including any partnership, association, limited liability company, agency
38 or department of the state of Kansas and political subdivisions thereof,
39 trust, estate, joint-stock company, insurance company or corporation,
40 whether domestic or foreign including nonprofit corporations, or the re-
41 ceiver, trustee in bankruptcy, trustee or successor thereof, or the legal
42 representatives of a deceased person, which has in its employ one or more
43 individuals performing services for it within this state. All individuals per-
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1 forming services within this state for any employing unit which maintains
2 two or more separate establishments within this state shall be deemed to
3 be employed by a single employing unit for all the purposes of this act.
4 Each individual employed to perform or to assist in performing the work
5 of any agent or employee of an employing unit shall be deemed to be
6 employed by such employing unit for all the purposes of this act, whether
7 such individual was hired or paid directly by such employing unit or by
8 such agent or employee, provided the employing unit had actual or con-
9 structive knowledge of the employment.
10 (h) ``Employer'' means:
11 (1) (A) Any employing unit for which agricultural labor as defined in
12 subsection (w) of this section is performed and which during any calendar
13 quarter in either the current or preceding calendar year paid remunera-
14 tion in cash of $20,000 or more to individuals employed in agricultural
15 labor or for some portion of a day in each of 20 different calendar weeks,
16 whether or not such weeks were consecutive, in either the current or the
17 preceding calendar year, employed in agricultural labor 10 or more in-
18 dividuals, regardless of whether they were employed at the same moment
19 of time.
20 (B) For the purpose of this subsection (h)(1), any individual who is a
21 member of a crew furnished by a crew leader to perform service in ag-
22 ricultural labor for any other person shall be treated as an employee of
23 such crew leader if:
24 (i) Such crew leader holds a valid certificate of registration under the
25 federal migrant and seasonal agricultural workers protection act or sub-
26 stantially all the members of such crew operate or maintain tractors,
27 mechanized harvesting or cropdusting equipment or any other mecha-
28 nized equipment, which is provided by such crew leader; and
29 (ii) such individual is not in the employment of such other person
30 within the meaning of subsection (i) of this section.
31 (C) For the purpose of this subsection (h)(1), in the case of any in-
32 dividual who is furnished by a crew leader to perform service in agricul-
33 tural labor for any other person and who is not treated as an employee
34 of such crew leader:
35 (i) Such other person and not the crew leader shall be treated as the
36 employer of such individual; and
37 (ii) such other person shall be treated as having paid cash remuner-
38 ation to such individual in an amount equal to the amount of cash re-
39 muneration paid to such individual by the crew leader, either on the crew
40 leader's own behalf or on behalf of such other person, for the service in
41 agricultural labor performed for such other person.
42 (D) For the purposes of this subsection (h)(1) ``crew leader'' means
43 an individual who:
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1 (i) Furnishes individuals to perform service in agricultural labor for
2 any other person;
3 (ii) pays, either on such individual's own behalf or on behalf of such
4 other person, the individuals so furnished by such individual for the serv-
5 ice in agricultural labor performed by them; and
6 (iii) has not entered into a written agreement with such other person
7 under which such individual is designated as an employee of such other
8 person.
9 (2) (A) Any employing unit which: (i) In any calendar quarter in ei-
10 ther the current or preceding calendar year paid for service in employ-
11 ment wages of $1,500 or more, or (ii) for some portion of a day in each
12 of 20 different calendar weeks, whether or not such weeks were consec-
13 utive, in either the current or preceding calendar year, had in employment
14 at least one individual, whether or not the same individual was in em-
15 ployment in each such day.
16 (B) Employment of individuals to perform domestic service or agri-
17 cultural labor and wages paid for such service or labor shall not be con-
18 sidered in determining whether an employing unit meets the criteria of
19 this subsection (h)(2).
20 (3) Any employing unit for which service is employment as defined
21 in subsection (i)(3)(E) of this section.
22 (4) (A) Any employing unit, whether or not it is an employing unit
23 under subsection (g) of this section, which acquires or in any manner
24 succeeds to (i) substantially all of the employing enterprises, organization,
25 trade or business, or (ii) substantially all the assets, of another employing
26 unit which at the time of such acquisition was an employer subject to this
27 act;
28 (B) any employing unit which is controlled substantially, either di-
29 rectly or indirectly by legally enforceable means or otherwise, by the same
30 interest or interests, whether or not such interest or interests are an em-
31 ploying unit under subsection (g) of this section, which acquires or in any
32 manner succeeds to a portion of an employer's annual payroll, which is
33 less than 100% of such employer's annual payroll, and which intends to
34 continue the acquired portion as a going business.
35 (5) Any employing unit which paid cash remuneration of $1,000 or
36 more in any calendar quarter in the current or preceding calendar year
37 to individuals employed in domestic service as defined in subsection (aa)
38 of this section.
39 (6) Any employing unit which having become an employer under this
40 subsection (h) has not, under subsection (b) of K.S.A. 44-711 and amend-
41 ments thereto, ceased to be an employer subject to this act.
42 (7) Any employing unit which has elected to become fully subject to
43 this act in accordance with subsection (c) of K.S.A. 44-711 and amend-
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1 ments thereto.
2 (8) Any employing unit not an employer by reason of any other par-
3 agraph of this subsection (h), for which within either the current or pre-
4 ceding calendar year services in employment are or were performed with
5 respect to which such employing unit is liable for any federal tax against
6 which credit may be taken for contributions required to be paid into a
7 state unemployment compensation fund; or which, as a condition for ap-
8 proval of this act for full tax credit against the tax imposed by the federal
9 unemployment tax act, is required, pursuant to such act, to be an ``em-
10 ployer'' under this act.
11 (9) Any employing unit described in section 501(c)(3) of the federal
12 internal revenue code of 1986 which is exempt from income tax under
13 section 501(a) of the code that had four or more individuals in employ-
14 ment for some portion of a day in each of 20 different weeks, whether or
15 not such weeks were consecutive, within either the current or preceding
16 calendar year, regardless of whether they were employed at the same
17 moment of time.
18 (i) ``Employment'' means:
19 (1) Subject to the other provisions of this subsection, service, includ-
20 ing service in interstate commerce, performed by
21 (A) Any active officer of a corporation; or
22 (B) any individual who, under the usual common law rules applicable
23 in determining the employer-employee relationship, has the status of an
24 employee; or
25 (C) any individual other than an individual who is an employee under
26 subsection (i)(1)(A) or subsection (i)(1)(B) above who performs services
27 for remuneration for any person:
28 (i) As an agent-driver or commission-driver engaged in distributing
29 meat products, vegetable products, fruit products, bakery products, bev-
30 erages (other than milk), or laundry or dry-cleaning services, for such
31 individual's principal; or
32 (ii) as a traveling or city salesman, other than as an agent-driver or
33 commission-driver, engaged upon a full-time basis in the solicitation on
34 behalf of, and the transmission to, a principal (except for side-line sales
35 activities on behalf of some other person) of orders from wholesalers,
36 retailers, contractors, or operators of hotels, restaurants, or other similar
37 establishments for merchandise for resale or supplies for use in their
38 business operations.
39 For purposes of subsection (i)(1)(D), the term ``employment'' shall in-
40 clude services described in paragraphs (i) and (ii) above only if:
41 (a) The contract of service contemplates that substantially all of the
42 services are to be performed personally by such individual;
43 (b) the individual does not have a substantial investment in facilities
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1 used in connection with the performance of the services (other than in
2 facilities for transportation); and
3 (c) the services are not in the nature of a single transaction that is not
4 part of a continuing relationship with the person for whom the services
5 are performed.
6 (2) The term ``employment'' shall include an individual's entire serv-
7 ice within the United States, even though performed entirely outside this
8 state if,
9 (A) The service is not localized in any state, and
10 (B) the individual is one of a class of employees who are required to
11 travel outside this state in performance of their duties, and
12 (C) the individual's base of operations is in this state, or if there is no
13 base of operations, then the place from which service is directed or con-
14 trolled is in this state.
15 (3) The term ``employment'' shall also include:
16 (A) Services performed within this state but not covered by the pro-
17 visions of subsection (i)(1) or subsection (i)(2) shall be deemed to be
18 employment subject to this act if contributions are not required and paid
19 with respect to such services under an unemployment compensation law
20 of any other state or of the federal government.
21 (B) Services performed entirely without this state, with respect to no
22 part of which contributions are required and paid under an unemploy-
23 ment compensation law of any other state or of the federal government,
24 shall be deemed to be employment subject to this act only if the individual
25 performing such services is a resident of this state and the secretary ap-
26 proved the election of the employing unit for whom such services are
27 performed that the entire service of such individual shall be deemed to
28 be employment subject to this act.
29 (C) Services covered by an arrangement pursuant to subsection (l) of
30 K.S.A. 44-714 and amendments thereto between the secretary and the
31 agency charged with the administration of any other state or federal un-
32 employment compensation law, pursuant to which all services performed
33 by an individual for an employing unit are deemed to be performed en-
34 tirely within this state, shall be deemed to be employment if the secretary
35 has approved an election of the employing unit for whom such services
36 are performed, pursuant to which the entire service of such individual
37 during the period covered by such election is deemed to be insured work.
38 (D) Services performed by an individual for wages or under any con-
39 tract of hire shall be deemed to be employment subject to this act unless
40 and until it is shown to the satisfaction of the secretary that: (i) Such
41 individual has been and will continue to be free from control or direction
42 over the performance of such services, both under the individual's con-
43 tract of hire and in fact; and (ii) such service is either outside the usual
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1 course of the business for which such service is performed or that such
2 service is performed outside of all the places of business of the enterprise
3 for which such service is performed.
4 (E) Service performed by an individual in the employ of this state or
5 any instrumentality thereof, any political subdivision of this state or any
6 instrumentality thereof, any instrumentality of more than one of the fore-
7 going or any instrumentality which is jointly owned by this state or a
8 political subdivision thereof and one or more other states or political sub-
9 divisions of this or other states, provided that such service is excluded
10 from ``employment'' as defined in the federal unemployment tax act by
11 reason of section 3306(c)(7) of that act and is not excluded from ``em-
12 ployment'' under subsection (i)(4)(A) of this section.
13 (F) Service performed by an individual in the employ of a religious,
14 charitable, educational or other organization which is excluded from the
15 term ``employment'' as defined in the federal unemployment tax act solely
16 by reason of section 3306(c)(8) of that act, and is not excluded from
17 employment under paragraphs (I) through (M) of subsection (i)(4).
18 (G) The term ``employment'' shall include the service of an individual
19 who is a citizen of the United States, performed outside the United States
20 except in Canada, in the employ of an American employer (other than
21 service which is deemed ``employment'' under the provisions of subsec-
22 tion (i)(2) or subsection (i)(3) or the parallel provisions of another state's
23 law), if:
24 (i) The employer's principal place of business in the United States is
25 located in this state; or
26 (ii) the employer has no place of business in the United States, but
27 (A) The employer is an individual who is a resident of this state; or
28 (B) the employer is a corporation which is organized under the laws
29 of this state; or
30 (C) the employer is a partnership or a trust and the number of the
31 partners or trustees who are residents of this state is greater than the
32 number who are residents of any other state; or
33 (iii) none of the criteria of paragraphs (i) and (ii) above of this sub-
34 section (i)(3)(G) are met but the employer has elected coverage in this
35 state or, the employer having failed to elect coverage in any state, the
36 individual has filed a claim for benefits, based on such service, under the
37 law of this state.
38 (H) An ``American employer,'' for purposes of subsection (i)(3)(G),
39 means a person who is:
40 (i) An individual who is a resident of the United States; or
41 (ii) a partnership if 2/3 or more of the partners are residents of the
42 United States; or
43 (iii) a trust, if all of the trustees are residents of the United States; or
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1 (iv) a corporation organized under the laws of the United States or
2 of any state.
3 (I) Notwithstanding subsection (i)(2) of this section, all service per-
4 formed by an officer or member of the crew of an American vessel or
5 American aircraft on or in connection with such vessel or aircraft, if the
6 operating office, from which the operations of such vessel or aircraft op-
7 erating within, or within and without, the United States are ordinarily and
8 regularly supervised, managed, directed and controlled is within this state.
9 (J) Notwithstanding any other provisions of this subsection (i), service
10 with respect to which a tax is required to be paid under any federal law
11 imposing a tax against which credit may be taken for contributions re-
12 quired to be paid into a state unemployment compensation fund or which
13 as a condition for full tax credit against the tax imposed by the federal
14 unemployment tax act is required to be covered under this act.
15 (K) Domestic service in a private home, local college club or local
16 chapter of a college fraternity or sorority performed for a person who
17 paid cash remuneration of $1,000 or more in any calendar quarter in the
18 current calendar year or the preceding calendar year to individuals em-
19 ployed in such domestic service.
20 (4) The term ``employment'' shall not include: (A) Service performed
21 in the employ of an employer specified in subsection (h)(3) of this section
22 if such service is performed by an individual in the exercise of duties:
23 (i) As an elected official;
24 (ii) as a member of a legislative body, or a member of the judiciary,
25 of a state or political subdivision;
26 (iii) as a member of the state national guard or air national guard;
27 (iv) as an employee serving on a temporary basis in case of fire, storm,
28 snow, earthquake, flood or similar emergency;
29 (v) in a position which, under or pursuant to the laws of this state, is
30 designated as a major nontenured policymaking or advisory position or as
31 a policymaking or advisory position the performance of the duties of
32 which ordinarily does not require more than eight hours per week;
33 (B) service with respect to which unemployment compensation is
34 payable under an unemployment compensation system established by an
35 act of congress;
36 (C) service performed by an individual in the employ of such indi-
37 vidual's son, daughter or spouse, and service performed by a child under
38 the age of 21 years in the employ of such individual's father or mother;
39 (D) service performed in the employ of the United States govern-
40 ment or an instrumentality of the United States exempt under the con-
41 stitution of the United States from the contributions imposed by this act,
42 except that to the extent that the congress of the United States shall
43 permit states to require any instrumentality of the United States to make
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1 payments into an unemployment fund under a state unemployment com-
2 pensation law, all of the provisions of this act shall be applicable to such
3 instrumentalities, and to services performed for such instrumentalities, in
4 the same manner, to the same extent and on the same terms as to all
5 other employers, employing units, individuals and services. If this state
6 shall not be certified for any year by the federal security agency under
7 section 3304(c) of the federal internal revenue code of 1986, the payments
8 required of such instrumentalities with respect to such year shall be re-
9 funded by the secretary from the fund in the same manner and within
10 the same period as is provided in subsection (f) of K.S.A. 44-717 and
11 amendments thereto with respect to contributions erroneously collected;
12 (E) service covered by an arrangement between the secretary and
13 the agency charged with the administration of any other state or federal
14 unemployment compensation law pursuant to which all services per-
15 formed by an individual for an employing unit during the period covered
16 by such employing unit's duly approved election, are deemed to be per-
17 formed entirely within the jurisdiction of such other state or federal
18 agency;
19 (F) service performed by an individual under the age of 18 in the
20 delivery or distribution of newspapers or shopping news, not including
21 delivery or distribution to any point for subsequent delivery or distribu-
22 tion;
23 (G) service performed by an individual for an employing unit as an
24 insurance agent or as an insurance solicitor, if all such service performed
25 by such individual for such employing unit is performed for remuneration
26 solely by way of commission;
27 (H) service performed in any calendar quarter in the employ of any
28 organization exempt from income tax under section 501(a) of the federal
29 internal revenue code of 1986 (other than an organization described in
30 section 401(a) or under section 521 of such code) if the remuneration for
31 such service is less than $50. In construing the application of the term
32 ``employment,'' if services performed during 1/2 or more of any pay period
33 by an individual for the person employing such individual constitute em-
34 ployment, all the services of such individual for such period shall be
35 deemed to be employment; but if the services performed during more
36 than 1/2 of any such pay period by an individual for the person employing
37 such individual do not constitute employment, then none of the services
38 of such individual for such period shall be deemed to be employment. As
39 used in this subsection (i)(4)(H) the term ``pay period'' means a period
40 (of not more than 31 consecutive days) for which a payment of remuner-
41 ation is ordinarily made to the individual by the person employing such
42 individual. This subsection (i)(4)(H) shall not be applicable with respect
43 to services with respect to which unemployment compensation is payable
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1 under an unemployment compensation system established by an act of
2 congress;
3 (I) services performed in the employ of a church or convention or
4 association of churches, or an organization which is operated primarily
5 for religious purposes and which is operated, supervised, controlled, or
6 principally supported by a church or convention or association of
7 churches;
8 (J) service performed by a duly ordained, commissioned, or licensed
9 minister of a church in the exercise of such individual's ministry or by a
10 member of a religious order in the exercise of duties required by such
11 order;
12 (K) service performed in a facility conducted for the purpose of car-
13 rying out a program of:
14 (i) Rehabilitation for individuals whose earning capacity is impaired
15 by age or physical or mental deficiency or injury, or
16 (ii) providing remunerative work for individuals who because of their
17 impaired physical or mental capacity cannot be readily absorbed in the
18 competitive labor market, by an individual receiving such rehabilitation
19 or remunerative work;
20 (L) service performed as part of an employment work-relief or work-
21 training program assisted or financed in whole or in part by any federal
22 agency or an agency of a state or political subdivision thereof, by an in-
23 dividual receiving such work relief or work training;
24 (M) service performed by an inmate of a custodial or correctional
25 institution, unless such service is performed for a private, for-profit em-
26 ployer;
27 (N) service performed, in the employ of a school, college, or univer-
28 sity, if such service is performed by a student who is enrolled and is
29 regularly attending classes at such school, college or university;
30 (O) service performed by an individual who is enrolled at a nonprofit
31 or public educational institution which normally maintains a regular fac-
32 ulty and curriculum and normally has a regularly organized body of stu-
33 dents in attendance at the place where its educational activities are carried
34 on as a student in a full-time program, taken for credit at such institution,
35 which combines academic instruction with work experience, if such serv-
36 ice is an integral part of such program, and such institution has so certified
37 to the employer, except that this subsection (i)(4)(O) shall not apply to
38 service performed in a program established for or on behalf of an em-
39 ployer or group of employers;
40 (P) service performed in the employ of a hospital licensed, certified
41 or approved by the secretary of health and environment, if such service
42 is performed by a patient of the hospital;
43 (Q) services performed as a qualified real estate agent. As used in
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1 this subsection (i)(4)(Q) the term ``qualified real estate agent'' means any
2 individual who is licensed by the Kansas real estate commission as a sa-
3 lesperson under the real estate brokers' and salespersons' license act and
4 for whom:
5 (i) Substantially all of the remuneration, whether or not paid in cash,
6 for the services performed by such individual as a real estate salesperson
7 is directly related to sales or other output, including the performance of
8 services, rather than to the number of hours worked; and
9 (ii) the services performed by the individual are performed pursuant
10 to a written contract between such individual and the person for whom
11 the services are performed and such contract provides that the individual
12 will not be treated as an employee with respect to such services for state
13 tax purposes;
14 (R) services performed for an employer by an extra in connection
15 with any phase of motion picture or television production or television
16 commercials for less than 14 days during any calendar year. As used in
17 this subsection, the term ``extra'' means an individual who pantomimes in
18 the background, adds atmosphere to the set and performs such actions
19 without speaking and ``employer'' shall not include any employer which
20 is a governmental entity or any employer described in section 501(c)(3)
21 of the federal internal revenue code of 1986 which is exempt from income
22 under section 501(a) of the code;
23 (S) services performed by an oil and gas contract pumper. As used in
24 this subsection (i)(4)(S), ``oil and gas contract pumper'' means a person
25 performing pumping and other services on one or more oil or gas leases,
26 or on both oil and gas leases, relating to the operation and maintenance
27 of such oil and gas leases, on a contractual basis for the operators of such
28 oil and gas leases and ``services'' shall not include services performed for
29 a governmental entity or any organization described in section 501(c)(3)
30 of the federal internal revenue code of 1986 which is exempt from income
31 taxation under section 501(a) of the code;
32 (T) service not in the course of the employer's trade or business per-
33 formed in any calendar quarter by an employee, unless the cash remu-
34 neration paid for such service is $200 or more and such service is per-
35 formed by an individual who is regularly employed by such employer to
36 perform such service. For purposes of this paragraph, an individual shall
37 be deemed to be regularly employed by an employer during a calendar
38 quarter only if:
39 (i) On each of some 24 days during such quarter such individual per-
40 forms for such employer for some portion of the day service not in the
41 course of the employer's trade or business, or
42 (ii) such individual was regularly employed, as determined under sub-
43 paragraph (i), by such employer in the performance of such service during
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1 the preceding calendar quarter.
2 Such excluded service shall not include any services performed for an
3 employer which is a governmental entity or any employer described in
4 section 501(c)(3) of the federal internal revenue code of 1986 which is
5 exempt from income taxation under section 501(a) of the code; and
6 (U) service which is performed by any person who is a member of a
7 limited liability company and which is performed as a member or manager
8 of that limited liability company.; and
9 (V) services performed as a qualified direct seller. The term ``direct
10 seller'' means any person if:
11 (i) Such person:
12 (aa) is engaged in the trade or business of selling or soliciting the sale
13 of consumer products to any buyer on a buy-sell basis or a deposit-com-
14 mission basis for resale, by the buyer or any other person, in the home or
15 otherwise rather than in a permanent retail establishment; or
16 (bb) is engaged in the trade or business of selling or soliciting the sale
17 of consumer products in the home or otherwise than in a permanent retail
18 establishment;
19 (ii) substantially all the remuneration whether or not paid in cash for
20 the performance of the services described in subparagraph (i) is directly
21 related to sales or other output including the performance of services
22 rather than to the number of hours worked; and
23 (iii) the services performed by the person are performed pursuant to
24 a written contract between such person and the person for whom the
25 services are performed and such contract provides that the person will
26 not be treated as an employee for federal and state tax purposes; and
27 (iv) for purposes of this act, a sale or a sale resulting exclusively
28 from a solicitation made by telephone, mail, or other telecommu-
29 nications method, or other nonpersonal method does not satisfy
30 the requirements of this section subsection.
31 (j) ``Employment office'' means any office operated by this state and
32 maintained by the secretary of human resources for the purpose of as-
33 sisting persons to become employed.
34 (k) ``Fund'' means the employment security fund established by this
35 act, to which all contributions and reimbursement payments required and
36 from which all benefits provided under this act shall be paid and including
37 all money received from the federal government as reimbursements pur-
38 suant to section 204 of the federal-state extended compensation act of
39 1970, and amendments thereto.
40 (l) ``State'' includes, in addition to the states of the United States of
41 America, any dependency of the United States, the Commonwealth of
42 Puerto Rico, the District of Columbia and the Virgin Islands.
43 (m) ``Unemployment.'' An individual shall be deemed ``unemployed''
HB 2022--Am. by SCW
13
1 with respect to any week during which such individual performs no serv-
2 ices and with respect to which no wages are payable to such individual,
3 or with respect to any week of less than full-time work if the wages payable
4 to such individual with respect to such week are less than such individual's
5 weekly benefit amount.
6 (n) ``Employment security administration fund'' means the fund es-
7 tablished by this act, from which administrative expenses under this act
8 shall be paid.
9 (o) ``Wages'' means all compensation for services, including commis-
10 sions, bonuses, back pay and the cash value of all remuneration, including
11 benefits, paid in any medium other than cash. The reasonable cash value
12 of remuneration in any medium other than cash, shall be estimated and
13 determined in accordance with rules and regulations prescribed by the
14 secretary. Compensation payable to an individual which has not been
15 actually received by that individual within 21 days after the end of the
16 pay period in which the compensation was earned shall be considered to
17 have been paid on the 21st day after the end of that pay period. Effective
18 January 1, 1986, gratuities, including tips received from persons other
19 than the employing unit, shall be considered wages when reported in
20 writing to the employer by the employee. Employees must furnish a writ-
21 ten statement to the employer, reporting all tips received if they total $20
22 or more for a calendar month whether the tips are received directly from
23 a person other than the employer or are paid over to the employee by
24 the employer. This includes amounts designated as tips by a customer
25 who uses a credit card to pay the bill. Notwithstanding the other provi-
26 sions of this subsection (o), wages paid in back pay awards or settlements
27 shall be allocated to the week or weeks and reported in the manner as
28 specified in the award or agreement, or, in the absence of such specificity
29 in the award or agreement, such wages shall be allocated to the week or
30 weeks in which such wages, in the judgment of the secretary, would have
31 been paid. The term ``wages'' shall not include:
32 (1) That part of the remuneration which has been paid in a calendar
33 year to an individual by an employer or such employer's predecessor in
34 excess of $3,000 for all calendar years prior to 1972, $4,200 for the cal-
35 endar years 1972 to 1977, inclusive, $6,000 for calendar years 1978 to
36 1982, inclusive, $7,000 for the calendar year 1983, and $8,000 with re-
37 spect to employment during any calendar year following 1983, except that
38 if the definition of the term ``wages'' as contained in the federal unem-
39 ployment tax act is amended to include remuneration in excess of $8,000
40 paid to an individual by an employer under the federal act during any
41 calendar year, wages shall include remuneration paid in a calendar year
42 to an individual by an employer subject to this act or such employer's
43 predecessor with respect to employment during any calendar year up to
HB 2022--Am. by SCW
14
1 an amount equal to the dollar limitation specified in the federal unem-
2 ployment tax act. For the purposes of this subsection (o)(1), the term
3 ``employment'' shall include service constituting employment under any
4 employment security law of another state or of the federal government;
5 (2) the amount of any payment (including any amount paid by an
6 employing unit for insurance or annuities, or into a fund, to provide for
7 any such payment) made to, or on behalf of, an employee or any of such
8 employee's dependents under a plan or system established by an em-
9 ployer which makes provisions for employees generally, for a class or
10 classes of employees or for such employees or a class or classes of em-
11 ployees and their dependents, on account of (A) sickness or accident
12 disability, except in the case of any payment made to an employee or such
13 employee's dependents, this subparagraph shall exclude from the term
14 ``wages'' only payments which are received under a workers compensation
15 law. Any third party which makes a payment included as wages by reason
16 of this subparagraph (2)(A) shall be treated as the employer with respect
17 to such wages, or (B) medical and hospitalization expenses in connection
18 with sickness or accident disability, or (C) death;
19 (3) any payment on account of sickness or accident disability, or med-
20 ical or hospitalization expenses in connection with sickness or accident
21 disability, made by an employer to, or on behalf of, an employee after the
22 expiration of six calendar months following the last calendar month in
23 which the employee worked for such employer;
24 (4) any payment made to, or on behalf of, an employee or such em-
25 ployee's beneficiary:
26 (A) From or to a trust described in section 401(a) of the federal in-
27 ternal revenue code of 1986 which is exempt from tax under section
28 501(a) of the federal internal revenue code of 1986 at the time of such
29 payment unless such payment is made to an employee of the trust as
30 remuneration for services rendered as such employee and not as a ben-
31 eficiary of the trust;
32 (B) under or to an annuity plan which, at the time of such payment,
33 is a plan described in section 403(a) of the federal internal revenue code
34 of 1986;
35 (C) under a simplified employee pension as defined in section
36 408(k)(1) of the federal internal revenue code of 1986, other than any
37 contribution described in section 408(k)(6) of the federal internal revenue
38 code of 1986;
39 (D) under or to an annuity contract described in section 403(b) of
40 the federal internal revenue code of 1986, other than a payment for the
41 purchase of such contract which was made by reason of a salary reduction
42 agreement whether evidenced by a written instrument or otherwise;
43 (E) under or to an exempt governmental deferred compensation plan
HB 2022--Am. by SCW
15
1 as defined in section 3121(v)(3) of the federal internal revenue code of
2 1986;
3 (F) to supplement pension benefits under a plan or trust described
4 in any of the foregoing provisions of this subparagraph to take into ac-
5 count some portion or all of the increase in the cost of living, as deter-
6 mined by the secretary of labor, since retirement but only if such sup-
7 plemental payments are under a plan which is treated as a welfare plan
8 under section 3(2)(B)(ii) of the federal employee retirement income se-
9 curity act of 1974; or
10 (G) under a cafeteria plan within the meaning of section 125 of the
11 federal internal revenue code of 1986;
12 (5) the payment by an employing unit (without deduction from the
13 remuneration of the employee) of the tax imposed upon an employee
14 under section 3101 of the federal internal revenue code of 1986 with
15 respect to remuneration paid to an employee for domestic service in a
16 private home of the employer or for agricultural labor;
17 (6) remuneration paid in any medium other than cash to an employee
18 for service not in the course of the employer's trade or business;
19 (7) remuneration paid to or on behalf of an employee if and to the
20 extent that at the time of the payment of such remuneration it is reason-
21 able to believe that a corresponding deduction is allowable under section
22 217 of the federal internal revenue code of 1986 relating to moving ex-
23 penses;
24 (8) any payment or series of payments by an employer to an employee
25 or any of such employee's dependents which is paid:
26 (A) Upon or after the termination of an employee's employment re-
27 lationship because of (i) death or (ii) retirement for disability; and
28 (B) under a plan established by the employer which makes provisions
29 for employees generally, a class or classes of employees or for such em-
30 ployees or a class or classes of employees and their dependents, other
31 than any such payment or series of payments which would have been paid
32 if the employee's employment relationship had not been so terminated;
33 (9) remuneration for agricultural labor paid in any medium other than
34 cash;
35 (10) any payment made, or benefit furnished, to or for the benefit of
36 an employee if at the time of such payment or such furnishing it is rea-
37 sonable to believe that the employee will be able to exclude such payment
38 or benefit from income under section 129 of the federal internal revenue
39 code of 1986 which relates to dependent care assistance programs;
40 (11) the value of any meals or lodging furnished by or on behalf of
41 the employer if at the time of such furnishing it is reasonable to believe
42 that the employee will be able to exclude such items from income under
43 section 119 of the federal internal revenue code of 1986;
HB 2022--Am. by SCW
16
1 (12) any payment made by an employer to a survivor or the estate of
2 a former employee after the calendar year in which such employee died;
3 or
4 (13) any benefit provided to or on behalf of an employee if at the
5 time such benefit is provided it is reasonable to believe that the employee
6 will be able to exclude such benefit from income under section 74(c), 117
7 or 132 of the federal internal revenue code of 1986.
8 Nothing in any paragraph of subsection (o), other than paragraph (1),
9 shall exclude from the term ``wages'': (1) Any employer contribution un-
10 der a qualified cash or deferred arrangement, as defined in section 401(k)
11 of the federal internal revenue code of 1986, to the extent that such
12 contribution is not included in gross income by reason of section 402(a)(8)
13 of the federal internal revenue code of 1986; or (2) any amount treated
14 as an employer contribution under section 414(h)(2) of the federal inter-
15 nal revenue code of 1986.
16 Any amount deferred under a nonqualified deferred compensation
17 plan shall be taken into account for purposes of this section as of the later
18 of when the services are performed or when there is no substantial risk
19 of forfeiture of the rights to such amount. Any amount taken into account
20 as wages by reason of this paragraph, and the income attributable thereto,
21 shall not thereafter be treated as wages for purposes of this section. For
22 purposes of this paragraph, the term ``nonqualified deferred compensa-
23 tion plan'' means any plan or other arrangement for deferral of compen-
24 sation other than a plan described in subsection (o)(4).
25 (p) ``Week'' means such period or periods of seven consecutive cal-
26 endar days, as the secretary may by rules and regulations prescribe.
27 (q) ``Calendar quarter'' means the period of three consecutive cal-
28 endar months ending March 31, June 30, September 30 or December
29 31, or the equivalent thereof as the secretary may by rules and regulations
30 prescribe.
31 (r) ``Insured work'' means employment for employers.
32 (s) ``Approved training'' means any vocational training course or
33 course in basic education skills approved by the secretary or a person or
34 persons designated by the secretary.
35 (t) ``American vessel'' or ``American aircraft'' means any vessel or air-
36 craft documented or numbered or otherwise registered under the laws
37 of the United States; and any vessel or aircraft which is neither docu-
38 mented or numbered or otherwise registered under the laws of the
39 United States nor documented under the laws of any foreign country, if
40 its crew performs service solely for one or more citizens or residents of
41 the United States or corporations organized under the laws of the United
42 States or of any state.
43 (u) ``Institution of higher education,'' for the purposes of this section,
HB 2022--Am. by SCW
17
1 means an educational institution which:
2 (1) Admits as regular students only individuals having a certificate of
3 graduation from a high school, or the recognized equivalent of such a
4 certificate;
5 (2) is legally authorized in this state to provide a program of education
6 beyond high school;
7 (3) provides an educational program for which it awards a bachelor's
8 or higher degree, or provides a program which is acceptable for full credit
9 toward such a degree, a program of postgraduate or postdoctoral studies,
10 or a program of training to prepare students for gainful employment in a
11 recognized occupation; and
12 (4) is a public or other nonprofit institution.
13 Notwithstanding any of the foregoing provisions of this subsection (u),
14 all colleges and universities in this state are institutions of higher educa-
15 tion for purposes of this section, except that no college, university, junior
16 college or other postsecondary school or institution which is operated by
17 the federal government or any agency thereof shall be an institution of
18 higher education for purposes of the employment security law.
19 (v) ``Educational institution'' means any institution of higher educa-
20 tion, as defined in subsection (u) of this section, or any institution, except
21 private for profit institutions, in which participants, trainees or students
22 are offered an organized course of study or training designed to transfer
23 to them knowledge, skills, information, doctrines, attitudes or abilities
24 from, by or under the guidance of an instructor or teacher and which is
25 approved, licensed or issued a permit to operate as a school by the state
26 department of education or other government agency that is authorized
27 within the state to approve, license or issue a permit for the operation of
28 a school. The courses of study or training which an educational institution
29 offers may be academic, technical, trade or preparation for gainful em-
30 ployment in a recognized occupation.
31 (w) (1) ``Agricultural labor'' means any remunerated service:
32 (A) On a farm, in the employ of any person, in connection with cul-
33 tivating the soil, or in connection with raising or harvesting any agricul-
34 tural or horticultural commodity, including the raising, shearing, feeding,
35 caring for, training, and management of livestock, bees, poultry, and fur-
36 bearing animals and wildlife.
37 (B) In the employ of the owner or tenant or other operator of a farm,
38 in connection with the operating, management, conservation, improve-
39 ment, or maintenance of such farm and its tools and equipment, or in
40 salvaging timber or clearing land of brush and other debris left by a hur-
41 ricane, if the major part of such service is performed on a farm.
42 (C) In connection with the production or harvesting of any commod-
43 ity defined as an agricultural commodity in section (15)(g) of the agri-
HB 2022--Am. by SCW
18
1 cultural marketing act, as amended (46 Stat. 1500, sec. 3; 12 U.S.C. 1141j)
2 or in connection with the ginning of cotton, or in connection with the
3 operation or maintenance of ditches, canals, reservoirs or waterways, not
4 owned or operated for profit, used exclusively for supplying and storing
5 water for farming purposes.
6 (D) (i) In the employ of the operator of a farm in handling, planting,
7 drying, packing, packaging, processing, freezing, grading, storing, or de-
8 livering to storage or to market or to a carrier for transportation to market,
9 in its unmanufactured state, any agricultural or horticultural commodity;
10 but only if such operator produced more than 1/2 of the commodity with
11 respect to which such service is performed;
12 (ii) in the employ of a group of operators of farms (or a cooperative
13 organization of which such operators are members) in the performance
14 of service described in paragraph (i) above of this subsection (w)(1)(D),
15 but only if such operators produced more than 1/2 of the commodity with
16 respect to which such service is performed;
17 (iii) the provisions of paragraphs (i) and (ii) above of this subsection
18 (w)(1)(D) shall not be deemed to be applicable with respect to service
19 performed in connection with commercial canning or commercial freez-
20 ing or in connection with any agricultural or horticultural commodity after
21 its delivery to a terminal market for distribution for consumption.
22 (E) On a farm operated for profit if such service is not in the course
23 of the employer's trade or business.
24 (2) ``Agricultural labor'' does not include service performed prior to
25 January 1, 1980, by an individual who is an alien admitted to the United
26 States to perform service in agricultural labor pursuant to sections 214(c)
27 and 101(a)(15)(H) of the federal immigration and nationality act.
28 (3) As used in this subsection (w), the term ``farm'' includes stock,
29 dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations,
30 ranches, nurseries, ranges, greenhouses, or other similar structures used
31 primarily for the raising of agricultural or horticultural commodities, and
32 orchards.
33 (4) For the purpose of this section, if an employing unit does not
34 maintain sufficient records to separate agricultural labor from other em-
35 ployment, all services performed during any pay period by an individual
36 for the person employing such individual shall be deemed to be agricul-
37 tural labor if services performed during 1/2 or more of such pay period
38 constitute agricultural labor; but if the services performed during more
39 than 1/2 of any such pay period by an individual for the person employing
40 such individual do not constitute agricultural labor, then none of the serv-
41 ices of such individual for such period shall be deemed to be agricultural
42 labor. As used in this subsection (w), the term ``pay period'' means a
43 period of not more than 31 consecutive days for which a payment of
HB 2022--Am. by SCW
19
1 remuneration is ordinarily made to the individual by the person employ-
2 ing such individual.
3 (x) ``Reimbursing employer'' means any employer who makes pay-
4 ments in lieu of contributions to the employment security fund as pro-
5 vided in subsection (e) of K.S.A. 44-710 and amendments thereto.
6 (y) ``Contributing employer'' means any employer other than a re-
7 imbursing employer or rated governmental employer.
8 (z) ``Wage combining plan'' means a uniform national arrangement
9 approved by the United States secretary of labor in consultation with the
10 state unemployment compensation agencies and in which this state shall
11 participate, whereby wages earned in one or more states are transferred
12 to another state, called the ``paying state,'' and combined with wages in
13 the paying state, if any, for the payment of benefits under the laws of the
14 paying state and as provided by an arrangement so approved by the
15 United States secretary of labor.
16 (aa) ``Domestic service'' means any service for a person in the oper-
17 ation and maintenance of a private household, local college club or local
18 chapter of a college fraternity or sorority, as distinguished from service
19 as an employee in the pursuit of an employer's trade, occupation, pro-
20 fession, enterprise or vocation.
21 (bb) ``Rated governmental employer'' means any governmental entity
22 which elects to make payments as provided by K.S.A. 44-710d and
23 amendments thereto.
24 (cc) ``Benefit cost payments'' means payments made to the employ-
25 ment security fund by a governmental entity electing to become a rated
26 governmental employer.
27 (dd) ``Successor employer'' means any employer, as described in sub-
28 section (h) of this section, which acquires or in any manner succeeds to
29 (1) substantially all of the employing enterprises, organization, trade or
30 business of another employer or (2) substantially all the assets of another
31 employer.
32 (ee) ``Predecessor employer'' means an employer, as described in
33 subsection (h) of this section, who has previously operated a business or
34 portion of a business with employment to which another employer has
35 succeeded.
36 (ff) ``Lessor employing unit'' means any independently established
37 business entity which engages in the business of providing leased em-
38 ployees to a client lessee.
39 (gg) ``Client lessee'' means any individual, organization, partnership,
40 corporation or other legal entity leasing employees from a lessor employ-
41 ing unit.
42 [Sec. 2. K.S.A. 1996 Supp. 44-706 is hereby amended to read
43 as follows: 44-706. An individual shall be disqualified for benefits:
HB 2022--Am. by SCW
20
1 [(a) If the individual left work voluntarily without good cause
2 attributable to the work or the employer, subject to the other pro-
3 visions of this subsection (a). After a temporary job assignment,
4 failure of an individual to affirmatively request an additional as-
5 signment on the next succeeding workday, if required by the em-
6 ployment agreement, after completion of a given work assignment,
7 shall constitute leaving work voluntarily. The disqualification shall
8 begin the day following the separation and shall continue until after
9 the individual has become reemployed and has had earnings from
10 insured work of at least three times the individual's weekly benefit
11 amount. An individual shall not be disqualified under this subsec-
12 tion (a) if:
13 [(1) The individual was forced to leave work because of illness
14 or injury upon the advice of a licensed and practicing health care
15 provider and, upon learning of the necessity for absence, immedi-
16 ately notified the employer thereof, or the employer consented to
17 the absence, and after recovery from the illness or injury, when
18 recovery was certified by a practicing health care provider, the in-
19 dividual returned to the employer and offered to perform services
20 and the individual's regular work or comparable and suitable work
21 was not available; as used in this paragraph (1) ``health care pro-
22 vider'' means any person licensed by the proper licensing authority
23 of any state to engage in the practice of medicine and surgery, os-
24 teopathy, chiropractic, dentistry, optometry, podiatry or psychol-
25 ogy;
26 [(2) the individual left temporary work to return to the regular
27 employer;
28 [(3) the individual left work to enlist in the armed forces of the
29 United States, but was rejected or delayed from entry;
30 [(4) the individual left work because of the voluntary or invol-
31 untary transfer of the individual's spouse from one job to another
32 job, which is for the same employer or for a different employer, at
33 a geographic location which makes it unreasonable for the individ-
34 ual to continue work at the individual's job;
35 [(5) the individual left work because of hazardous working con-
36 ditions; in determining whether or not working conditions are haz-
37 ardous for an individual, the degree of risk involved to the indi-
38 [chvidual's health, safety and morals, the individual's physical fitness
39 and prior training and the working conditions of workers engaged
40 in the same or similar work for the same and other employers in the
41 locality shall be considered; as used in this paragraph (5), ``hazard-
42 ous working conditions'' means working conditions that could result
43 in a danger to the physical or mental well-being of the individual;
HB 2022--Am. by SCW
21
1 each determination as to whether hazardous working conditions ex-
2 ist shall include, but shall not be limited to, a consideration of (A)
3 the safety measures used or the lack thereof, and (B) the condition
4 of equipment or lack of proper equipment; no work shall be consid-
5 ered hazardous if the working conditions surrounding the indi-
6 [chvidual's work are the same or substantially the same as the working
7 conditions generally prevailing among individuals performing the
8 same or similar work for other employers engaged in the same or
9 similar type of activity;
10 [(6) the individual left work to enter training approved under
11 section 236(a)(1) of the federal trade act of 1974, provided the work
12 left is not of a substantially equal or higher skill level than the
13 individual's past adversely affected employment (as defined for pur-
14 poses of the federal trade act of 1974), and wages for such work are
15 not less than 80% of the individual's average weekly wage as deter-
16 mined for the purposes of the federal trade act of 1974;
17 [(7) the individual left work because of unwelcome harassment
18 of the individual by the employer or another employee of which the
19 employing unit had knowledge;
20 [(8) the individual left work to accept better work; each deter-
21 mination as to whether or not the work accepted is better work shall
22 include, but shall not be limited to, consideration of (A) the rate of
23 pay, the hours of work and the probable permanency of the work
24 left as compared to the work accepted, (B) the cost to the individual
25 of getting to the work left in comparison to the cost of getting to the
26 work accepted, and (C) the distance from the individual's place of
27 residence to the work accepted in comparison to the distance from
28 the individual's residence to the work left;
29 [(9) the individual left work as a result of being instructed or
30 requested by the employer, a supervisor or a fellow employee to
31 perform a service or commit an act in the scope of official job duties
32 which is in violation of an ordinance or statute;
33 [(10) the individual left work because of a violation of the work
34 agreement by the employing unit and, before the individual left, the
35 individual had exhausted all remedies provided in such agreement
36 for the settlement of disputes before terminating; or
37 [(11) after making reasonable efforts to preserve the work, the
38 individual left work due to a personal emergency of such nature
39 and compelling urgency that it would be contrary to good con-
40 science to impose a disqualification.
41 [(b) If the individual has been discharged for misconduct con-
42 nected with the individual's work. The disqualification shall begin
43 the day following the separation and shall continue until after the
HB 2022--Am. by SCW
22
1 individual becomes reemployed and has had earnings from insured
2 work of at least three times the individual's determined weekly ben-
3 efit amount, except that if an individual is discharged for gross mis-
4 conduct connected with the individual's work, such individual shall
5 be disqualified for benefits until such individual again becomes em-
6 ployed and has had earnings from insured work of at least eight
7 times such individual's determined weekly benefit amount. In ad-
8 dition, all wage credits attributable to the employment from which
9 the individual was discharged for gross misconduct connected with
10 the individual's work shall be canceled. No such cancellation of
11 wage credits shall affect prior payments made as a result of a prior
12 separation.
13 [(1) For the purposes of this subsection (b), ``misconduct'' is de-
14 fined as a violation of a duty or obligation reasonably owed the
15 employer as a condition of employment. The term ``gross miscon-
16 duct'' as used in this subsection (b) shall be construed to mean con-
17 duct evincing extreme, willful or wanton misconduct as defined by
18 this subsection (b).
19section [(2) For the purposes of this subsection (b), the use of or im-
20 pairment caused by an alcoholic beverage, a cereal malt beverage
21 or a nonprescribed controlled substance by an individual while
22 working shall be conclusive evidence of misconduct and the posses-
23 sion of an alcoholic beverage, a cereal malt beverage or a nonpres-
24 cribed controlled substance by an individual while working shall
25 be prima facie evidence of conduct which is a violation of a duty or
26 obligation reasonably owed to the employer as a condition of em-
27 ployment. For purposes of this subsection (b), the disqualification of
28 an individual from employment which disqualification is required by the
29 provisions of the drug free workplace act, 41 U.S.C. 701 et seq. or is
30 otherwise required by law because the individual refused to submit to or
31 failed a chemical test which was required by law, shall be conclusive
32 evidence of misconduct. Refusal failure of or refusal to submit to a
33 chemical test administered pursuant to an employee assistance program
34 or other drug or alcohol treatment program in which the individual was
35 participating voluntarily or as a condition of further employment shall
36 also be conclusive evidence of misconduct. Alcoholic liquor shall be
37 defined as provided in K.S.A. 41-102 and amendments thereto. Ce-
38 real malt beverage shall be defined as provided in K.S.A. 41-2701
39 and amendments thereto. Controlled substance shall be defined as
40 provided in K.S.A. 65-4101 and amendments thereto of the uniform
41 controlled substances act. As used in this subsection (b)(2), ``re-
42 quired by law'' means required by a federal or state law, a federal
43 or state rule or regulation having the force and effect of law, a
HB 2022--Am. by SCW
23
1 county resolution or municipal ordinance, or a policy relating to
2 public safety adopted in open meeting by the governing body of any
3 special district or other local governmental entity. An individual's
4 refusal to submit to a chemical test shall not be admissible evidence
5 to prove misconduct unless the test is required by and meets the
6 standards of the drug free workplace act, 41 U.S.C. 701 et seq., the
7 test was administered as part of an employee assistance program or
8 other drug or alcohol treatment program in which the employee was
9 participating voluntarily or as a condition of further employment,
10 the test was otherwise required by law and, the test constituted a
11 required condition of employment for the individual's job, or, there
12 was probable cause to believe that the individual used, possessed
13 or was impaired by an alcoholic beverage, a cereal malt beverage
14 or a controlled substance while working. The results of a chemical
15 test shall not be admissible evidence to prove misconduct unless the
16 following conditions were met:
17 [(A) Either (i) the test was required by law, the test was admin-
18 istered pursuant to the drug free workplace act, 41 U.S.C. 701 et
19 seq., (ii) the test was administered as part of an employee assistance
20 program or other drug or alcohol treatment program in which the
21 employee was participating voluntarily or as a condition of further
22 employment, (iii) the test was required by law and the test constituted
23 a required condition of employment for the individual's job, or (iv)
24 there was probable cause to believe that the individual used, had
25 possession of, or was impaired by the alcoholic beverage, the cereal
26 malt beverage or the controlled substance while working;
27 [(B) the test sample was collected either (i) as prescribed by the
28 drug free workplace act, 41 U.S.C. 701 et seq., (ii) as prescribed by
29 an employee assistance program or other drug or alcohol treatment
30 program in which the employee was participating voluntarily or as
31 a condition of further employment, (iii) as prescribed by a test
32 which was required by law and which constituted a required con-
33 dition of employment for the individual's job, or (iv) at a time con-
34 temporaneous with the events establishing probable cause;
35 [(C) the collecting and labeling of the test sample was per-
36 formed by a licensed health care professional or any other individ-
37 ual authorized to collect or label test samples by federal or state
38 law, or a federal or state rule or regulation having the force and
39 effect of law, including law enforcement personnel;
40 [(D) the test was performed by a laboratory approved by the
41 United States department of health and human services or licensed
42 by the department of health and environment, except that a blood
43 sample may be tested for alcohol content by a laboratory commonly
HB 2022--Am. by SCW
24
1 used for that purpose by state law enforcement agencies;
2 [(E) the test was confirmed by gas chromatography, gas chro-
3 matography-mass spectroscopy or other comparably reliable ana-
4 lytical method, except that no such confirmation is required for a
5 blood alcohol sample; and
6 [(F) the foundation evidence must establish, beyond a reason-
7 able doubt, that the test results were from the sample taken from
8 the individual.
9 [(3) For the purposes of this subsection (b), misconduct shall
10 include, but not be limited to repeated absence, including lateness,
11 from scheduled work if the facts show:
12 [(A) The individual was absent without good cause;
13 [(B) the absence was in violation of the employer's written ab-
14 senteeism policy;
15 [(C) the employer gave or sent written notice to the individual
16 that future absence will result in discharge; and
17 [(D) the employee had knowledge of the employer's written ab-
18 senteeism policy.
19 [(4) An individual shall not be disqualified under this subsec-
20 tion (b) if the individual is discharged under the following circum-
21 stances:
22 [(A) The employer discharged the individual after learning the
23 individual was seeking other work or when the individual gave no-
24 tice of future intent to quit;
25 [(B) the individual was making a good-faith effort to do the as-
26 signed work but was discharged due to: (i) Inefficiency, (ii) unsat-
27 isfactory performance due to inability, incapacity or lack of train-
28 ing or experience, (iii) isolated instances of ordinary negligence or
29 inadvertence, (iv) good-faith errors in judgment or discretion, or (v)
30 unsatisfactory work or conduct due to circumstances beyond the
31 individual's control; or
32 [(C) the individual's refusal to perform work in excess of the
33 contract of hire.
34 [(c) If the individual has failed, without good cause, to either
35 apply for suitable work when so directed by the employment office
36 of the secretary of human resources, or to accept suitable work
37 when offered to the individual by the employment office, the sec-
38 retary of human resources, or an employer, such disqualification
39 shall begin with the week in which such failure occurred and shall
40 continue until the individual becomes reemployed and has had
41 earnings from insured work of at least three times such individual's
42 determined weekly benefit amount. In determining whether or not
43 any work is suitable for an individual, the secretary of human re-
HB 2022--Am. by SCW
25
1 sources, or a person or persons designated by the secretary, shall
2 consider the degree of risk involved to health, safety and morals,
3 physical fitness and prior training, experience and prior earnings,
4 length of unemployment and prospects for securing local work in
5 the individual's customary occupation or work for which the indi-
6 vidual is reasonably fitted by training or experience, and the dis-
7 tance of the available work from the individual's residence. Not-
8 withstanding any other provisions of this act, an otherwise eligible
9 individual shall not be disqualified for refusing an offer of suitable
10 employment, or failing to apply for suitable employment when no-
11 tified by an employment office, or for leaving the individual's most
12 recent work accepted during approved training, including training
13 approved under section 236(a)(1) of the trade act of 1974, if the
14 acceptance of or applying for suitable employment or continuing
15 such work would require the individual to terminate approved
16 training and no work shall be deemed suitable and benefits shall
17 not be denied under this act to any otherwise eligible individual for
18 refusing to accept new work under any of the following conditions:
19 (1) If the position offered is vacant due directly to a strike, lockout
20 or other labor dispute; (2) if the remuneration, hours or other con-
21 ditions of the work offered are substantially less favorable to the
22 individual than those prevailing for similar work in the locality; (3)
23 if as a condition of being employed, the individual would be re-
24 quired to join or to resign from or refrain from joining any labor
25 organization.
26 [(d) For any week with respect to which the secretary of human
27 resources, or a person or persons designated by the secretary, finds
28 that the individual's unemployment is due to a stoppage of work
29 which exists because of a labor dispute or there would have been a
30 work stoppage had normal operations not been maintained with
31 other personnel previously and currently employed by the same
32 employer at the factory, establishment or other premises at which
33 the individual is or was last employed, except that this subsection
34 (d) shall not apply if it is shown to the satisfaction of the secretary
35 of human resources, or a person or persons designated by the sec-
36 retary, that: (1) The individual is not participating in or financing
37 or directly interested in the labor dispute which caused the stop-
38 page of work; and (2) the individual does not belong to a grade or
39 class of workers of which, immediately before the commencement
40 of the stoppage, there were members employed at the premises at
41 which the stoppage occurs any of whom are participating in or fi-
42 nancing or directly interested in the dispute. If in any case separate
43 branches of work which are commonly conducted as separate busi-
HB 2022--Am. by SCW
26
1 nesses in separate premises are conducted in separate departments
2 of the same premises, each such department shall, for the purpose
3 of this subsection (d), be deemed to be a separate factory, estab-
4 lishment or other premises. For the purposes of this subsection (d),
5 failure or refusal to cross a picket line or refusal for any reason
6 during the continuance of such labor dispute to accept the indivi-
7 dual's available and customary work at the factory, establishment
8 or other premises where the individual is or was last employed shall
9 be considered as participation and interest in the labor dispute.
10 [(e) For any week with respect to which or a part of which the
11 individual has received or is seeking unemployment benefits under
12 the unemployment compensation law of any other state or of the
13 United States, except that if the appropriate agency of such other
14 state or the United States finally determines that the individual is
15 not entitled to such unemployment benefits, this disqualification
16 shall not apply.
17 [(f) For any week with respect to which the individual is entitled
18 to receive any unemployment allowance or compensation granted
19 by the United States under an act of congress to ex-service men and
20 women in recognition of former service with the military or naval
21 services of the United States.
22 [(g) For the period of one year beginning with the first day fol-
23 lowing the last week of unemployment for which the individual re-
24 ceived benefits, or for one year from the date the act was committed,
25 whichever is the later, if the individual, or another in such indi-
26 [chvidual's behalf with the knowledge of the individual, has knowingly
27 made a false statement or representation, or has knowingly failed
28 to disclose a material fact to obtain or increase benefits under this
29 act or any other unemployment compensation law administered by
30 the secretary of human resources.
31 [(h) For any week with respect to which the individual is re-
32 ceiving compensation for temporary total disability or permanent
33 total disability under the workmen's compensation law of any state
34 or under a similar law of the United States.
35 [(i) For any week of unemployment on the basis of service in an
36 instructional, research or principal administrative capacity for an
37 educational institution as defined in subsection (v) of K.S.A. 44-703
38 and amendments thereto, if such week begins during the period be-
39 tween two successive academic years or terms or, when an agree-
40 ment provides instead for a similar period between two regular but
41 not successive terms during such period or during a period of paid
42 sabbatical leave provided for in the individual's contract, if the in-
43 dividual performs such services in the first of such academic years
HB 2022--Am. by SCW
27
1 or terms and there is a contract or a reasonable assurance that such
2 individual will perform services in any such capacity for any edu-
3 cational institution in the second of such academic years or terms.
4 [(j) For any week of unemployment on the basis of service in
5 any capacity other than service in an instructional, research, or
6 administrative capacity in an educational institution, as defined in
7 subsection (v) of K.S.A. 44-703 and amendments thereto, if such
8 week begins during the period between two successive academic
9 years or terms if the individual performs such services in the first
10 of such academic years or terms and there is a reasonable assurance
11 that the individual will perform such services in the second of such
12 academic years or terms, except that if benefits are denied to the
13 individual under this subsection (j) and the individual was not of-
14 fered an opportunity to perform such services for the educational
15 institution for the second of such academic years or terms, such
16 individual shall be entitled to a retroactive payment of benefits for
17 each week for which the individual filed a timely claim for benefits
18 and for which benefits were denied solely by reason of this subsec-
19 tion (j).
20n [(k) For any week of unemployment on the basis of service in
21 any capacity for an educational institution as defined in subsection
22 (v) of K.S.A. 44-703 and amendments thereto, if such week begins
23 during an established and customary vacation period or holiday
24 recess, if the individual performs services in the period immediately
25 before such vacation period or holiday recess and there is a reason-
26 able assurance that such individual will perform such services in
27 the period immediately following such vacation period or holiday
28 recess.
29 [(l) For any week of unemployment on the basis of any services,
30 substantially all of which consist of participating in sports or ath-
31 letic events or training or preparing to so participate, if such week
32 begins during the period between two successive sport seasons or
33 similar period if such individual performed services in the first of
34 such seasons or similar periods and there is a reasonable assurance
35 that such individual will perform such services in the later of such
36 seasons or similar periods.
37 [(m) For any week on the basis of services performed by an alien
38 unless such alien is an individual who was lawfully admitted for
39 permanent residence at the time such services were performed, was
40 lawfully present for purposes of performing such services, or was
41 permanently residing in the United States under color of law at the
42 time such services were performed, including an alien who was law-
43 fully present in the United States as a result of the application of
HB 2022--Am. by SCW
28
1 the provisions of section 212(d)(5) of the federal immigration and
2 nationality act. Any data or information required of individuals
3 applying for benefits to determine whether benefits are not payable
4 to them because of their alien status shall be uniformly required
5 from all applicants for benefits. In the case of an individual whose
6 application for benefits would otherwise be approved, no determi-
7 nation that benefits to such individual are not payable because of
8 such individual's alien status shall be made except upon a prepon-
9 derance of the evidence.
10 [(n) For any week in which an individual is receiving a govern-
11 mental or other pension, retirement or retired pay, annuity or other
12 similar periodic payment under a plan maintained by a base period
13 employer and to which the entire contributions were provided by
14 such employer, except that: (1) If the entire contributions to such
15 plan were provided by the base period employer but such indivi-
16 dual's weekly benefit amount exceeds such governmental or other
17 pension, retirement or retired pay, annuity or other similar periodic
18 payment attributable to such week, the weekly benefit amount pay-
19 able to the individual shall be reduced (but not below zero) by an
20 amount equal to the amount of such pension, retirement or retired
21 pay, annuity or other similar periodic payment which is attributa-
22 ble to such week; or (2) if only a portion of contributions to such
23 plan were provided by the base period employer, the weekly benefit
24 amount payable to such individual for such week shall be reduced
25 (but not below zero) by the prorated weekly amount of the pension,
26 retirement or retired pay, annuity or other similar periodic pay-
27 ment after deduction of that portion of the pension, retirement or
28 retired pay, annuity or other similar periodic payment that is di-
29 rectly attributable to the percentage of the contributions made to
30 the plan by such individual; or (3) if the entire contributions to the
31 plan were provided by such individual, or by the individual and an
32 employer (or any person or organization) who is not a base period
33 employer, no reduction in the weekly benefit amount payable to the
34 individual for such week shall be made under this subsection (n);
35 or (4) whatever portion of contributions to such plan were provided
36 by the base period employer, if the services performed for the em-
37 ployer by such individual during the base period, or remuneration
38 received for the services, did not affect the individual's eligibility
39 for, or increased the amount of, such pension, retirement or retired
40 pay, annuity or other similar periodic payment, no reduction in the
41 weekly benefit amount payable to the individual for such week shall
42 be made under this subsection (n). The conditions specified in
43 clause (4) of this subsection (n) shall not apply to payments made
HB 2022--Am. by SCW
29
1 under the social security act or the railroad retirement act of 1974,
2 or the corresponding provisions of prior law. Payments made under
3 these acts shall be treated as otherwise provided in this subsection
4 (n). If the reduced weekly benefit amount is not a multiple of $1, it
5 shall be reduced to the next lower multiple of $1.
6 [(o) For any week of unemployment on the basis of services per-
7 formed in any capacity and under any of the circumstances de-
8 scribed in subsection (i), (j) or (k) which an individual performed
9 in an educational institution while in the employ of an educational
10 service agency. For the purposes of this subsection (o), the term
11 ``educational service agency'' means a governmental agency or en-
12 tity which is established and operated exclusively for the purpose
13 of providing such services to one or more educational institutions.
14 [(p) For any week of unemployment on the basis of service as a
15 school bus or other motor vehicle driver employed by a private
16 contractor to transport pupils, students and school personnel to or
17 from school-related functions or activities for an educational insti-
18 tution, as defined in subsection (v) of K.S.A. 44-703 and amend-
19 ments thereto, if such week begins during the period between two
20 successive academic years or during a similar period between two
21 regular terms, whether or not successive, if the individual has a
22 contract or contracts, or a reasonable assurance thereof, to perform
23 services in any such capacity with a private contractor for any ed-
24 ucational institution for both such academic years or both such
25 terms. An individual shall not be disqualified for benefits as pro-
26 vided in this subsection (p) for any week of unemployment on the
27 basis of service as a bus or other motor vehicle driver employed by
28 a private contractor to transport persons to or from nonschool-
29 [chrelated functions or activities.
30 [(q) For any week of unemployment on the basis of services per-
31 formed by the individual in any capacity and under any of the cir-
32 cumstances described in subsection (i), (j), (k) or (o) which are pro-
33 vided to or on behalf of an educational institution, as defined in
34 subsection (v) of K.S.A. 44-703 and amendments thereto, while the
35 individual is in the employ of an employer which is a governmental
36 entity or any employer described in section 501(c)(3) of the federal
37 internal revenue code of 1986 which is exempt from income under
38 section 501(a) of the code.
39 [(r) For any week in which an individual is registered at and
40 attending an established school, training facility or other educa-
41 tional institution, or is on vacation during or between two succes-
42 sive academic years or terms. An individual shall not be disqualified
43 for benefits as provided in this subsection (r) provided:
HB 2022--Am. by SCW
30
1 [(1) The individual was engaged in full-time employment con-
2 current with the individual's school attendance; or
3 [(2) the individual is attending approved training as defined in
4 subsection (s) of K.S.A. 44-703 and amendments thereto; or
5 [(3) the individual is attending evening, weekend or limited day
6 time classes, which would not affect availability for work, and is
7 otherwise eligible under subsection (c) of K.S.A. 44-705 and amend-
8 ments thereto.
9 [(s) For any week with respect to which an individual is receiv-
10 ing or has received remuneration in the form of a back pay award
11 or settlement. The remuneration shall be allocated to the week or
12 weeks in the manner as specified in the award or agreement, or in
13 the absence of such specificity in the award or agreement, such
14 remuneration shall be allocated to the week or weeks in which such
15 remuneration, in the judgment of the secretary, would have been
16 paid.
17 [(1) For any such weeks that an individual receives renumera-
18 tion in the form of a back pay award or settlement, an overpayment
19 will be established in the amount of unemployment benefits paid
20 and shall be collected from the claimant.
21 [(2) If an employer chooses to withhold from a back pay award
22 or settlement, amounts paid to a claimant while they claimed un-
23 employment benefits, such employer shall pay the department the
24 amount withheld. With respect to such amount, the secretary shall
25 have available all of the collection remedies authorized or provided
26 in section K.S.A. 44-717, and amendments thereto.]
27 Sec. 2 [3]. K.S.A. 1996 Supp. 44-703 [and 44-706] is [are] hereby
28 repealed.
29 Sec. 3 [4]. This act shall take effect and be in force from and after
30 its publication in the statute book.