Do I Need to Report Self-Employment Wages When Collecting Unemployment?
Full Question:
I have been collecting unemployment benefits since 2007 and have only been able to find hourly work. I was told by the NJ Unemployment office that when I call in my claims for payment, I should answer NO to question #5 (Did you perform any ....or self-employment work) even though I have been working as an independent contractor. Is this correct? Will I have to return the benefits I have collected if the advisor that told me this was mistaken? I don't have the person's name or any details about that phone call, unfortunately.
06/29/2009 |
Category: Employment » Benefits |
State: New Jersey |
#17238
Answer:
Generally, a person is required to report all wages earned, whether it is through self-employment or otherwise. Failure to comply with this requirement may lead to penalties, including returning benefits received. There are certain exceptions for work performed as an elected official, church work, etc. Please see the following NJ statute for the definition of employment:
43:21-19 Definitions.
Definitions. As used in this chapter (R.S. 43:21-1 et seq.), unless the
context clearly requires otherwise:
(a)
(1) "Annual payroll" means the total amount of wages paid during a
calendar year (regardless of when earned) by an employer for employment.
(2) "Average annual payroll" means the average of the annual payrolls
of any employer for the last three or five preceding calendar years,
whichever average is higher, except that any year or years throughout
which an employer has had no "annual payroll" because of military service
shall be deleted from the reckoning; the "average annual payroll" in such
case is to be determined on the basis of the prior three or five calendar
years in each of which the employer had an "annual payroll" in the
operation of his business, if the employer resumes his business within 12
months after separation, discharge or release from such service, under
conditions other than dishonorable, and makes application to have his
"average annual payroll" determined on the basis of such deletion within
12 months after he resumes his business; provided, however, that "average
annual payroll" solely for the purposes of paragraph (3) of
subsection (e) of R.S. 43:21-7 means the average of the annual payrolls of any
employer on which he paid contributions to the State disability benefits
fund for the last three or five preceding calendar years, whichever
average is higher; provided further that only those wages be included on
which employer contributions have been paid on or before January 31 (or
the next succeeding day if such January 31 is a Saturday or Sunday)
immediately preceding the beginning of the 12-month period for which the
employer's contribution rate is computed.
(b) "Benefits" means the money payments payable to an individual,
as provided in this chapter (R.S. 43:21-1 et seq.), with respect to
his unemployment.
(c)
(1) "Base year" with respect to benefit years commencing on
or after July 1, 1986, shall mean the first four of the last five
completed calendar quarters immediately preceding an individual's
benefit year.
With respect to a benefit year commencing on or after July 1, 1995, if
an individual does not have sufficient qualifying weeks or wages in his
base year to qualify for benefits, the individual shall have the option
of designating that his base year shall be the "alternative base year,"
which means the last four completed calendar quarters immediately
preceding the individual's benefit year; except that, with respect to a
benefit year commencing on or after October 1, 1995, if the individual
also does not have sufficient qualifying weeks or wages in the last four
completed calendar quarters immediately preceding his benefit year to
qualify for benefits, "alternative base year" means the last three
completed calendar quarters immediately preceding his benefit year and,
of the calendar quarter in which the benefit year commences, the portion
of the quarter which occurs before the commencing of the benefit year.
The division shall inform the individual of his options under this
section as amended by P.L. 1995, c. 234. If information regarding weeks
and wages for the calendar quarter or quarters immediately preceding the
benefit year is not available to the division from the regular quarterly
reports of wage information and the division is not able to obtain the
information using other means pursuant to State or federal law, the
division may base the determination of eligibility for benefits on the
affidavit of an individual with respect to weeks and wages for that
calendar quarter. The individual shall furnish payroll documentation, if
available, in support of the affidavit. A determination of benefits based
on an alternative base year shall be adjusted when the quarterly report
of wage information from the employer is received if that information
causes a change in the determination.
(2) With respect to a benefit year commencing on or after June 1, 1990
for an individual who immediately preceding the benefit year was subject
to a disability compensable under the provisions of the "Temporary
Disability Benefits Law," P.L. 1948, c. 110 (C. 43:21-25 et seq.), "base
year" shall mean the first four of the last five completed calendar
quarters immediately preceding the individual's period of disability, if
the employment held by the individual immediately preceding the period of
disability is no longer available at the conclusion of that period and
the individual files a valid claim for unemployment benefits after the
conclusion of that period. For the purposes of this paragraph, "period of
disability" means the period defined as a period of disability by
section 3 of the "Temporary Disability Benefits Law," P.L. 1948, c. 110 (C.
43:21-27). An individual who files a claim under the provisions of this
paragraph (2) shall not be regarded as having left work voluntarily for
the purposes of subsection (a) of R.S. 43:21-5.
(3) With respect to a benefit year commencing on or after June 1, 1990
for an individual who immediately preceding the benefit year was subject
to a disability compensable under the provisions of the workers'
compensation law (chapter 15 of Title 34 of the Revised Statutes), "base
year" shall mean the first four of the last five completed calendar
quarters immediately preceding the individual's period of disability, if
the period of disability was not longer than two years, if the employment
held by the individual immediately preceding the period of disability is
no longer available at the conclusion of that period and if the
individual files a valid claim for unemployment benefits after the
conclusion of that period. For the purposes of this paragraph, "period of
disability" means the period from the time at which the individual
becomes unable to work because of the compensable disability until the
time that the individual becomes able to resume work and continue work on
a permanent basis. An individual who files a claim under the provisions
of this paragraph (3) shall not be regarded as having left work
voluntarily for the purposes of subsection (a) of R.S. 43:21-5.
(d) "Benefit year" with respect to any individual means the 364
consecutive calendar days beginning with the day on, or as of, which he
first files a valid claim for benefits, and thereafter beginning with the
day on, or as of, which the individual next files a valid claim for
benefits after the termination of his last preceding benefit year. Any
claim for benefits made in accordance with subsection (a) of R.S. 43:21-6
shall be deemed to be a "valid claim" for the purpose of this
subsection if (1) he is unemployed for the week in which, or as of which, he files a
claim for benefits; and (2) he has fulfilled the conditions imposed by
subsection (e) of R.S. 43:21-4.
(e)
(1) "Division" means the Division of Unemployment and Temporary
Disability Insurance of the Department of Labor, and any transaction or
exercise of authority by the director of the division thereunder, or
under this chapter (R.S. 43:21-1 et seq.), shall be deemed to be
performed by the division.
(2) "Controller" means the Office of the Assistant Commissioner
for Finance and Controller of the Department of Labor, established
by the 1982 Reorganization Plan of the Department of Labor.
(f) "Contributions" means the money payments to the State Unemployment
Compensation Fund, required by R.S. 43:21-7. "Payments in lieu of
contributions" means the money payments to the State Unemployment
Compensation Fund by employers electing or required to make payments in
lieu of contributions, as provided in section 3 or section 4 of P.L.
1971, c. 346 (C. 43:21-7.2 or 43:21-7.3).
(g) "Employing unit" means the State or any of its instrumentalities or
any political subdivision thereof or any of its instrumentalities or any
instrumentality of more than one of the foregoing or any instrumentality
of any of the foregoing and one or more other states or political
subdivisions or any individual or type of organization, any partnership,
association, trust, estate, joint-stock company, insurance company or
corporation, whether domestic or foreign, or the receiver, trustee in
bankruptcy, trustee or successor thereof, or the legal representative of
a deceased person, which has or subsequent to January 1, 1936, had in its
employ one or more individuals performing services for it within this
State. All individuals performing services within this State for any
employing unit which maintains two or more separate establishments within
this State shall be deemed to be employed by a single employing unit for
all the purposes of this chapter (R.S. 43:21-1 et seq.). Each individual
employed to perform or to assist in performing the work of any agent or
employee of an employing unit shall be deemed to be employed by such
employing unit for all the purposes of this chapter (R.S. 43:21-1 et
seq.), whether such individual was hired or paid directly by such
employing unit or by such agent or employee; provided the employing unit
had actual or constructive knowledge of the work.
(h) "Employer" means:
(1) Any employing unit which in either the current or the preceding
calendar year paid remuneration for employment in the amount of $1,000.00
or more;
(2) Any employing unit (whether or not an employing unit at the time of
acquisition) which acquired the organization, trade or business, or
substantially all the assets thereof, of another which, at the time of
such acquisition, was an employer subject to this chapter (R.S. 43:21-1
et seq.);
(3) Any employing unit which acquired the organization, trade or
business, or substantially all the assets thereof, of another employing
unit and which, if treated as a single unit with such other employing
unit, would be an employer under paragraph (1) of this subsection;
(4) Any employing unit which together with one or more other employing
units is owned or controlled (by legally enforceable means or
otherwise), directly or indirectly by the same interests, or which owns
or controls one or more other employing units (by legally enforceable
means or otherwise), and which, if treated as a single unit with such
other employing unit or interest, would be an employer under
paragraph (1) of this subsection;
(5) Any employing unit for which service in employment as defined in
R.S. 43:21-19(i)(1)(B)(i) is performed after December 31, 1971; and as
defined in R.S. 43:21-19(i)(1)(B) (ii) is performed after December 31,
1977;
(6) Any employing unit for which service in employment as defined in
R.S. 43:21-19(i)(1)(c) is performed after December 31, 1971 and which in
either the current or the preceding calendar year paid remuneration for
employment in the amount of $1,000.00 or more;
(7) Any employing unit not an employer by reason of any other
paragraph of this subsection (h) for which, within either the current or preceding
calendar year, service is or was performed with respect to which such
employing unit is liable for any federal tax against which credit may be
taken for contributions required to be paid into a state unemployment
fund; or which, as a condition for approval of the "unemployment
compensation law" for full tax credit against the tax imposed by the
Federal Unemployment Tax Act, is required pursuant to such act to be an
employer under this chapter (R.S. 43:21-1 et seq.);
(8) (Deleted by amendment; P.L. 1977, c. 307.)
(9) (Deleted by amendment; P.L. 1977, c. 307.)
(10) (Deleted by amendment; P.L. 1977, c. 307.)
(11) Any employing unit subject to the provisions of the Federal
Unemployment Tax Act within either the current or the preceding calendar
year, except for employment hereinafter excluded under paragraph (7) of
subsection (i) of this section;
(12) Any employing unit for which agricultural labor in employment as
defined in R.S. 43:21-19(i)(1)(i) is performed after December 31, 1977;
(13) Any employing unit for which domestic service in employment
as defined in R.S. 43:21-19(i)(1)(J) is performed after December
31, 1977;
(14) Any employing unit which having become an employer under the
"unemployment compensation law" (R.S. 43:21-1 et seq.), has not under
R.S. 43:21-8 ceased to be an employer; or for the effective period of its
election pursuant to R.S. 43:21-8, any other employing unit which has
elected to become fully subject to this chapter (R.S. 43:21-1 et seq.).
(i)
(1) "Employment" means:
(A) Any service performed prior to January 1, 1972, which was
employment as defined in the "unemployment compensation law" (R.S. 43:21-1
et seq.) prior to such date, and, subject to the other provisions of this
subsection, service performed on or after January 1, 1972, including
service in interstate commerce, performed for remuneration or under any
contract of hire, written or oral, express or implied.
(B)
(i) Service performed after December 31, 1971 by an individual in
the employ of this State or any of its instrumentalities or in the employ
of this State and one or more other states or their instrumentalities for
a hospital or institution of higher education located in this State, if
such service is not excluded from "employment" under paragraph (D)
below.
(ii) Service performed after December 31, 1977, in the employ of this
State or any of its instrumentalities or any political
subdivision thereof or any of its instrumentalities or any instrumentality of more
than one of the foregoing or any instrumentality of the foregoing and one
or more other states or political subdivisions, if such service is not
excluded from "employment" under paragraph (D) below.
(C) Service performed after December 31, 1971 by an individual in the
employ of a religious, charitable, educational, or other organization,
which is excluded from "employment" as defined in the Federal
Unemployment Tax Act, solely by reason of section 3306(c) (8) of that
act, if such service is not excluded from "employment" under
paragraph (D) below.
(D) For the purposes of paragraphs (B) and (C), the term "employment"
does not apply to services performed
(i) In the employ of
(I) a church or convention or association of
churches, or
(II) an organization, or school which is operated primarily
for religious purposes and which is operated, supervised, controlled or
principally supported by a church or convention or association of
churches;
(ii) By a duly ordained, commissioned, or licensed minister of a church
in the exercise of his ministry or by a member of a religious order in
the exercise of duties required by such order;
(iii) Prior to January 1, 1978, in the employ of a school which is not
an institution of higher education, and after December 31, 1977, in the
employ of a governmental entity referred to in R.S. 43:21-19(i)(1)(B), if
such service is performed by an individual in the exercise of duties
(aa) as an elected official;
(bb) as a member of a legislative body, or a member of the judiciary,
of a state or political subdivision;
(cc) as a member of the State National Guard or Air National Guard;
(dd) as an employee serving on a temporary basis in case of fire,
storm, snow, earthquake, flood or similar emergency;
(ee) in a position which, under or pursuant to the laws of this State,
is designated as a major nontenured policy making or advisory position,
or a policy making or advisory position, the performance of the duties of
which ordinarily does not require more than eight hours per week; or
(iv) By an individual receiving rehabilitation or remunerative work in
a facility conducted for the purpose of carrying out a program of
rehabilitation of individuals whose earning capacity is impaired by age
or physical or mental deficiency or injury or providing remunerative work
for individuals who because of their impaired physical or mental capacity
cannot be readily absorbed in the competitive labor market;
(v) By an individual receiving work-relief or work-training as part of
an unemployment work-relief or work-training program assisted in whole or
in part by any federal agency or an agency of a state or political
subdivision thereof; or
(vi) Prior to January 1, 1978, for a hospital in a State prison or
other State correctional institution by an inmate of the prison or
correctional institution and after December 31, 1977, by an inmate of a
custodial or penal institution.
(E) The term "employment" shall include the services 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
section 3304(a) of the Internal Revenue Code of 1986 (26 U.S.C. § 3304(a)) in
the employ of an American employer (other than the service which is
deemed employment under the provisions of R.S. 43:21-19(i)(2) or (5) or
the parallel provisions of another state's unemployment compensation
law), if
(i) The American employer's principal place of business in the
United States is located in this State; or
(ii) The American employer has no place of business in the United
States, but
(I) the American employer is an individual who is a resident
of this State; or
(II) the American employer is a corporation which is
organized under the laws of this State; or
(III) the American employer is
a partnership or trust and the number of partners or trustees who are
residents of this State is greater than the number who are residents of
another state; or
(iii) None of the criteria of divisions (i) and (ii) of this
subparagraph (E) is met but the American employer has elected to become
an employer subject to the "unemployment compensation law" (R.S. 43:21-1
et seq.) in this State, or the American employer having failed to elect
to become an employer in any state, the individual has filed a claim for
benefits, based on such service, under the law of this State;
(iv) An "American employer," for the purposes of this
subparagraph (E), means
(I) an individual who is a resident of the United States; or
(II) a partnership, if two-thirds or more of the partners are residents
of the United States; or
(III) a trust, if all the trustees are residents
of the United States; or
(IV) a corporation organized under the laws of
the United States or of any state.
(F) Notwithstanding R.S. 43:21-19(i)(2), all service performed after
January 1, 1972 by an officer or member of the crew of an American vessel
or American aircraft on or in connection with such vessel or aircraft, if
the operating office from which the operations of such vessel or aircraft
operating within, or within and without, the United States are ordinarily
and regularly supervised, managed, directed, and controlled, is within
this State.
(G) Notwithstanding any other provision of this subsection, service in
this State with respect to which the taxes required to be paid under any
federal law imposing a tax against which credit may be taken for
contributions required to be paid into a state unemployment fund or which
as a condition for full tax credit against the tax imposed by the Federal
Unemployment Tax Act is required to be covered under the "unemployment
compensation law" (R.S. 43:21-1 et seq.).
(H) The term "United States" when used in a geographical sense in
subsection R.S. 43:21-19(i) includes the states, the District of
Columbia, the Commonwealth of Puerto Rico and, effective on the day after
the day on which the U.S. Secretary of Labor approves for the first time
under section 3304(a) of the Internal Revenue Code of 1986 (
26 U.S.C. § 3304(a)) an unemployment compensation law submitted to
the Secretary by the Virgin Islands for such approval, the Virgin
Islands.
(I)
(i) Service performed after December 31, 1977 in agricultural labor
in a calendar year for an entity which is an employer as defined in the
"unemployment compensation law," (R.S. 43:21-1 et seq.) as of January 1
of such year; or for an employing unit which
(aa) during any calendar quarter in either the current or the preceding
calendar year paid remuneration in cash of $20,000.00 or more for
individuals employed in agricultural labor, or
(bb) 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 the
preceding calendar year, employed in agricultural labor 10 or more
individuals, regardless of whether they were employed at the same moment
in time.
(ii) for the purposes of this subsection any individual who is a member
of a crew furnished by a crew leader to perform service in agricultural
labor for any other entity shall be treated as an employee of such crew
leader
(aa) if such crew leader holds a certification of registration
under the Migrant and Seasonal Agricultural Worker Protection Act,
Pub.L. 97-470 (29 U.S.C. § 1801 et seq.), or P.L. 1971, c. 192
(C. 34:8A-7 et seq.); or substantially all the members of such crew
operate or maintain tractors, mechanized harvesting or cropdusting
equipment, or any other mechanized equipment, which is provided by
such crew leader; and
(bb) if such individual is not an employee of such other person
for whom services were performed.
(iii) For the purposes of subparagraph (I)(i) in the case of any
individual who is furnished by a crew leader to perform service in
agricultural labor or any other entity and who is not treated as an
employee of such crew leader under (I) (ii)
(aa) such other entity and not the crew leader shall be treated
as the employer of such individual; and
(bb) such other entity 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 or on behalf of such other entity) for the service in
agricultural labor performed for such other entity.
(iv) For the purpose of subparagraph (I) (ii), the term "crew leader"
means an individual who
(aa) furnishes individuals to perform service in agricultural labor for
any other entity;
(bb) pays (either on his own behalf or on behalf of such other entity)
the individuals so furnished by him for the service in agricultural labor
performed by them; and
(cc) has not entered into a written agreement with such other entity
under which such individual is designated as an employee of such other
entity.
(J) Domestic service after December 31, 1977 performed in the private
home of an employing unit which paid cash remuneration of $1,000.00 or
more to one or more individuals for such domestic service in any calendar
quarter in the current or preceding calendar year.
(2) The term "employment" shall include an individual's entire
service performed within or both within and without this State if:
(A) The service is localized in this State; or
(B) The service is not localized in any state but some of the service
is performed in this State, and (i) the base of operations, or, if there
is no base of operations, then the place from which such service is
directed or controlled, is in this State; or (ii) the base of operations
or place from which such service is directed or controlled is not in any
state in which some part of the service is performed, but the
individual's residence is in this State.
(3) Services performed within this State but not covered under
paragraph (2) of this subsection shall be deemed to be employment subject
to this chapter (R.S. 43:21-1 et seq.) if contributions are not required
and paid with respect to such services under an unemployment compensation
law of any other state or of the federal government.
(4) Services not covered under paragraph (2) of this subsection and
performed entirely without this State, with respect to no part of which
contributions are required and paid under an unemployment compensation
law of any other state or of the federal government, shall be deemed to
be employment subject to this chapter (R.S. 43:21-1 et seq.) if the
individual performing such services is a resident of this State and the
employing unit for whom such services are performed files with the
division an election that the entire service of such individual shall be
deemed to be employment subject to this chapter (R.S. 43:21-1 et seq.).
(5) Service shall be deemed to be localized within a state if:
(A) The service is performed entirely within such state; or
(B) The service is performed both within and without such state,
but the service performed without such state is incidental to the
individual's service within the state; for example, is temporary
or transitory in nature or consists of isolated transactions.
(6) Services performed by an individual for remuneration shall be
deemed to be employment subject to this chapter (R.S. 43:21-1 et seq.)
unless and until it is shown to the satisfaction of the division that:
(A) Such individual has been and will continue to be free from control
or direction over the performance of such service, both under his
contract of service and in fact; and
(B) Such service is either outside the usual course of the business for
which such service is performed, or that such service is performed
outside of all the places of business of the enterprise for which such
service is performed; and
(C) Such individual is customarily engaged in an independently
established trade, occupation, profession or business.
(7) Provided that such services are also exempt under the Federal
Unemployment Tax Act, as amended, or that contributions with respect to
such services are not required to be paid into a state unemployment fund
as a condition for a tax offset credit against the tax imposed by the
Federal Unemployment Tax Act, as amended, the term "employment" shall not
include:
(A) Agricultural labor performed prior to January 1, 1978; and
after December 31, 1977, only if performed in a calendar year for
an entity which is not an employer as defined in the "unemployment
compensation law," (R.S. 43:21-1 et seq.) as of January 1 of such
calendar year; or unless performed for an employing unit which
(i) during a calendar quarter in either the current or the preceding
calendar year paid remuneration in cash of $20,000.00 or more to
individuals employed in agricultural labor, 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 the
preceding calendar year, employed in agricultural labor 10 or more
individuals, regardless of whether they were employed at the same moment
in time;
(B) Domestic service in a private home performed prior to January 1,
1978; and after December 31, 1977, unless performed in the private home
of an employing unit which paid cash remuneration of $1,000.00 or more to
one or more individuals for such domestic service in any calendar quarter
in the current or preceding calendar year;
(C) Service performed by an individual in the employ of his son,
daughter or spouse, and service performed by a child under the age
of 18 in the employ of his father or mother;
(D) Service performed prior to January 1, 1978, in the employ of this
State or of any political subdivision thereof or of any instrumentality
of this State or its political subdivisions, except as provided in R.S.
43:21-19(i)(1)(B) above, and service in the employ of the South Jersey
Port Corporation or its successors;
(E) Service performed in the employ of any other state or its political
subdivisions or of an instrumentality of any other state or states or
their political subdivisions to the extent that such instrumentality is
with respect to such service exempt under the Constitution of the United
States from the tax imposed under the Federal Unemployment Tax Act, as
amended, except as provided in R.S. 43:21-19(i)(1)(B) above;
(F) Service performed in the employ of the United States Government or
of any instrumentality of the United States except under the Constitution
of the United States from the contributions imposed by the "unemployment
compensation law," except that to the extent that the Congress of the
United States shall permit states to require any instrumentalities of the
United States to make payments into an unemployment fund under a state
unemployment compensation law, all of the provisions of this act shall be
applicable to such instrumentalities, and to service performed for such
instrumentalities, in the same manner, to the same extent and on the same
terms as to all other employers, employing units, individuals and
services; provided that if this State shall not be certified for any year
by the Secretary of Labor of the United States under section 3304 of the
federal Internal Revenue Code of 1986 (26 U.S.C. § 3304), the
payments required of such instrumentalities with respect to such year
shall be refunded by the division from the fund in the same manner and
within the same period as is provided in R.S. 43:21-14(f) with respect to
contributions erroneously paid to or collected by the division;
(G) Services performed in the employ of fraternal beneficiary
societies, orders, or associations operating under the lodge system or
for the exclusive benefit of the members of a fraternity itself operating
under the lodge system and providing for the payment of life, sick,
accident, or other benefits to the members of such society, order, or
association, or their dependents;
(H) Services performed as a member of the board of directors, a board
of trustees, a board of managers, or a committee of any bank, building
and loan, or savings and loan association, incorporated or organized
under the laws of this State or of the United States, where such services
do not constitute the principal employment of the individual;
(I) Service with respect to which unemployment insurance is payable
under an unemployment insurance program established by an Act of
Congress;
(J) Service performed by agents of mutual fund brokers or dealers in
the sale of mutual funds or other securities, by agents of insurance
companies, exclusive of industrial insurance agents or by agents of
investment companies, if the compensation to such agents for such
services is wholly on a commission basis;
(K) Services performed by real estate salesmen or brokers who are
compensated wholly on a commission basis;
(L) Services performed in the employ of any veterans' organization
chartered by Act of Congress or of any auxiliary thereof, no part of the
net earnings of which organization, or auxiliary thereof, inures to the
benefit of any private shareholder or individual;
(M) Service performed for or in behalf of the owner or operator of any
theater, ballroom, amusement hall or other place of entertainment, not in
excess of 10 weeks in any calendar year for the same owner or operator,
by any leader or musician of a band or orchestra, commonly called a "name
band," entertainer, vaudeville artist, actor, actress, singer or other
entertainer;
(N) Services performed after January 1, 1973 by an individual for a
labor union organization, known and recognized as a union local, as a
member of a committee or committees reimbursed by the union local for
time lost from regular employment, or as a part-time officer of a union
local and the remuneration for such services is less than $1,000.00 in a
calendar year;
(O) Services performed in the sale or distribution of merchandise by
home-to-home salespersons or in-the-home demonstrators whose remuneration
consists wholly of commissions or commissions and bonuses;
(P) Service performed in the employ of a foreign government, including
service as a consular, nondiplomatic representative, or other officer or
employee;
(Q) Service performed in the employ of an instrumentality wholly owned
by a foreign government if
(i) the service is of a character similar to
that performed in foreign countries by employees of the United States
Government or of an instrumentality thereof, and
(ii) the division finds
that the United States Secretary of State has certified to the United
States Secretary of the Treasury that the foreign government, with
respect to whose instrumentality exemption is claimed, grants an
equivalent exemption with respect to similar services performed in the
foreign country by employees of the United States Government and of
instrumentalities thereof;
(R) Service in the employ of an international organization entitled to
enjoy the privileges, exemptions and immunities under the International
Organizations Immunities Act (22 U.S.C. § 288 et seq.);
(S) Service covered by an election duly approved by an agency charged
with the administration of any other state or federal unemployment
compensation or employment security law, in accordance with an
arrangement pursuant to R.S. 43:21-21 during the effective period of such
election;
(T) Service performed in the employ of a school, college, or university
if such service is performed
(i) by a student enrolled at such school,
college, or university on a full-time basis in an educational program or
completing such educational program leading to a degree at any of the
severally recognized levels, or
(ii) by the spouse of such a student, if
such spouse is advised at the time such spouse commences to perform such
service that
(I) the employment of such spouse to perform such service is
provided under a program to provide financial assistance to such student
by such school, college, or university, and
(II) such employment will not
be covered by any program of unemployment insurance;
(U) Service performed by an individual who is enrolled at a nonprofit
or public educational institution which normally maintains a regular
faculty and curriculum and normally has a regularly organized body of
students in attendance at the place where its educational activities are
carried on, as a student in a full-time program, taken for credit at such
institution, which combines academic instruction with work experience, if
such service is an integral part of such program, and such institution
has so certified to the employer, except that this subparagraph shall not
apply to service performed in a program established for or on behalf of an
employer or group of employers;
(V) Service performed in the employ of a hospital, if such service is
performed by a patient of the hospital; service performed as a student
nurse in the employ of a hospital or a nurses' training school by an
individual who is enrolled and regularly attending classes in a nurses'
training school approved under the laws of this State; and service
performed as an intern in the employ of a hospital by an individual who
has completed a four-year course in a medical school approved pursuant to
the laws of this State;
(W) Services performed after the effective date of this amendatory act
by agents of mutual benefit associations if the compensation to such
agents for such services is wholly on a commission basis;
(X) Services performed by operators of motor vehicles weighing 18,000
pounds or more, licensed for commercial use and used for the highway
movement of motor freight, who own their equipment or who lease or
finance the purchase of their equipment through an entity which is not
owned or controlled directly or indirectly by the entity for which the
services were performed and who were compensated by receiving a
percentage of the gross revenue generated by the transportation move or by
a schedule of payment based on the distance and weight of the
transportation move;
(Y) Services performed by a certified shorthand reporter certified
pursuant to P.L. 1940, c. 175 (C. 45:15B-1 et seq.), provided to a third
party by the reporter who is referred to the third party pursuant to an
agreement with another certified shorthand reporter or shorthand
reporting service, on a freelance basis, compensation for which is based
upon a fee per transcript page, flat attendance fee, or other flat minimum
fee, or combination thereof, set forth in the agreement;
(Z) Services performed, using facilities provided by a travel agent, by
a person, commonly known as an outside travel agent, who acts as an
independent contractor, is paid on a commission basis, sets his own work
schedule and receives no benefits, sick leave, vacation or other leave
from the travel agent owning the facilities.
(8) If one-half or more of the services in any pay period performed by
an individual for an employing unit constitutes employment, all the
services of such individual shall be deemed to be employment; but if more
than one-half of the service in any pay period performed by an individual
for an employing unit does not constitute employment, then none of the
service of such individual shall be deemed to be employment. As used in
this paragraph, the term "pay period" means a period of not more than 31
consecutive days for which a payment for service is ordinarily made by an
employing unit to individuals in its employ.
(9) Services performed by the owner of a limousine franchise
(franchisee) shall not be deemed to be employment subject to the
"unemployment compensation law," R.S. 43:21-1 et seq., with regard to the
franchisor if:
(A) The limousine franchisee is incorporated;
(B) The franchisee is subject to regulation by the Interstate Commerce
Commission;
(C) The limousine franchise exists pursuant to a written franchise
arrangement between the franchisee and the franchisor as defined by
section 3 of P.L. 1971, c. 356 (C. 56:10-3); and
(D) The franchisee registers with the Department of Labor and receives
an employer registration number.
(j) "Employment office" means a free public employment office, or
branch thereof operated by this State or maintained as a part of a
State-controlled system of public employment offices.
(k) (Deleted by amendment, P.L. 1984, c. 24.)
(l) "State" includes, in addition to the states of the United States of
America, the District of Columbia, the Virgin Islands and Puerto Rico.
(m) "Unemployment."
(1) An individual shall be deemed "unemployed" for any week during
which:
(A) The individual is not engaged in full-time work and with respect to
which his remuneration is less than his weekly benefit rate, including
any week during which he is on vacation without pay; provided such
vacation is not the result of the individual's voluntary action, except
that for benefit years commencing on or after July 1, 1984, an officer of
a corporation, or a person who has more than a 5% equitable or debt
interest in the corporation, whose claim for benefits is based on wages
with that corporation shall not be deemed to be unemployed in any week
during the individual's term of office or ownership in the corporation;
or
(B) The individual is eligible for and receiving a self-employment
assistance allowance pursuant to the requirements of P.L. 1995, c. 394
(C. 43:21-67 et al.).
(2) The term "remuneration" with respect to any individual for
benefit years commencing on or after July 1, 1961, and as used in
this subsection, shall include only that part of the same which in
any week exceeds 20% of his weekly benefit rate (fractional
parts of a dollar omitted) or $5.00, whichever is the larger, and shall
not include any moneys paid to an individual by a county board of
elections for work as a board worker on an election day.
(3) An individual's week of unemployment shall be deemed to commence
only after the individual has filed a claim at an unemployment insurance
claims office, except as the division may by regulation otherwise
prescribe.
(n) "Unemployment compensation administration fund" means the
unemployment compensation administration fund established by this
chapter (R.S. 43:21-1 et seq.), from which administrative expenses under this
chapter (R.S. 43:21-1 et seq.) shall be paid.
(o) "Wages" means remuneration paid by employers for employment. If a
worker receives gratuities regularly in the course of his employment from
other than his employer, his "wages" shall also include the gratuities so
received, if reported in writing to his employer in accordance with
regulations of the division, and if not so reported, his "wages" shall be
determined in accordance with the minimum wage rates prescribed under any
labor law or regulation of this State or of the United States, or the
amount of remuneration actually received by the employee from his
employer, whichever is the higher.
(p) "Remuneration" means all compensation for personal services,
including commission and bonuses and the cash value of all compensation
in any medium other than cash.
(q) "Week" means for benefit years commencing on or after October
1, 1984, the calendar week ending at midnight Saturday, or as the
division may by regulation prescribe.
(r) "Calendar quarter" means the period of three consecutive calendar
months ending March 31, June 30, September 30, or December 31.
(s) "Investment company" means any company as defined in subsection a.
of section 1 of P.L. 1938, c. 322 (C. 17:16A-1).
(t)
(1) (Deleted by amendment, P.L. 2001, c. 17).
(2) "Base week," commencing on or after January 1, 1996 and before
January 1 2001, means:
(A) Any calendar week during which the individual earned in employment
from an employer remuneration not less than an amount which is 20% of the
Statewide average weekly remuneration defined in subsection (c) of R.S.
43:21-3 which amount shall be adjusted to the next higher multiple of
$1.00 if not already a multiple thereof, except that if in any calendar
week an individual subject to this subparagraph (A) is in employment with
more than one employer, the individual may in that calendar week
establish a base week with respect to each of the employers from whom the
individual earns remuneration equal to not less than the amount defined
in this subparagraph (A) during that week; or
(B) If the individual does not establish in his base year 20 or more
base weeks as defined in subparagraph (A) of this paragraph (2), any
calendar week of an individual's base year during which the individual
earned in employment from an employer remuneration not less than an
amount 20 times the minimum wage in effect pursuant to section 5 of P.L.
1966, c. 113 (C. 34:11-56a4) on October 1 of the calendar year preceding
the calendar year in which the benefit year commences, which amount shall
be adjusted to the next higher multiple of $1.00 if not already a
multiple thereof, except that if in any calendar week an individual
subject to this subparagraph (B) is in employment with more than one
employer, the individual may in that calendar week establish a base week
with respect to each of the employers from whom the individual earns
remuneration not less than the amount defined in this subparagraph (B)
during that week.
(3) "Base week," commencing on or after January 1, 2001, means any
calendar week during which the individual earned in employment from an
employer remuneration not less than an amount 20 times the minimum wage
in effect pursuant to section 5 of P.L. 1966, c. 113 (C. 34:11-56a4) on
October 1 of the calendar year preceding the calendar year in which the
benefit year commences, which amount shall be adjusted to the next higher
multiple of $1.00 if not already a multiple thereof, except that if in
any calendar week an individual subject to this paragraph (3) is in
employment with more than one employer, the individual may in that
calendar week establish a base week with respect to each of the employers
from whom the individual earns remuneration equal to not less than the
amount defined in this paragraph (3) during that week.
(u) "Average weekly wage" means the amount derived by dividing an
individual's total wages received during his base year base weeks (as
defined in subsection (t) of this section) from that most recent base
year employer with whom he has established at least 20 base weeks, by the
number of base weeks in which such wages were earned. In the event that
such claimant had no employer in his base year with whom he had
established at least 20 base weeks, then such individual's average weekly
wage shall be computed as if all of his base week wages were received
from one employer and as if all his base weeks of employment had been
performed in the employ of one employer.
For the purpose of computing the average weekly wage, the monetary
alternative in subparagraph (B) of paragraph (2) of subsection (e) of
R.S. 43:21-4 shall only apply in those instances where the individual did
not have at least 20 base weeks in the base year. For benefit years
commencing on or after July 1, 1986, "average weekly wage" means the
amount derived by dividing an individual's total base year wages by the
number of base weeks worked by the individual during the base year;
provided that for the purpose of computing the average weekly wage, the
maximum number of base weeks used in the divisor shall be 52.
(v) "Initial determination" means, subject to the provisions of R.S.
43:21-6(b)(2) and (3), a determination of benefit rights as measured by
an eligible individual's base year employment with a single employer
covering all periods of employment with that employer during the base
year. For benefit years commencing prior to July 1, 1986, subject to the
provisions of R.S. 43:21-3(d)(3), if an individual has been in employment
in his base year with more than one employer, no benefits shall be paid
to that individual under any successive initial determination until his
benefit rights have been exhausted under the next preceding initial
determination.
(w) "Last date of employment" means the last calendar day in the base
year of an individual on which he performed services in employment for a
given employer.
(x) "Most recent base year employer" means that employer with whom the
individual most recently, in point of time, performed service in
employment in the base year.
(y)
(1) "Educational institution" means any public or other nonprofit
institution (including an institution of higher education):
(A) In which participants, trainees, or students are offered an
organized course of study or training designed to transfer to them
knowledge, skills, information, doctrines, attitudes or abilities
from, by or under the guidance of an instructor or teacher;
(B) Which is approved, licensed or issued a permit to operate as
a school by the State Department of Education or other government
agency that is authorized within the State to approve, license or
issue a permit for the operation of a school; and
(C) Which offers courses of study or training which may be academic,
technical, trade, or preparation for gainful employment in a recognized
occupation.
(2) "Institution of higher education" means an educational institution
which:
(A) Admits as regular students only individuals having a certificate of
graduation from a high school, or the recognized equivalent of such a
certificate;
(B) Is legally authorized in this State to provide a program of
education beyond high school;
(C) Provides an educational program for which it awards a bachelor's or
higher degree, or provides a program which is acceptable for full credit
toward such a degree, a program of post-graduate or post-doctoral
studies, or a program of training to prepare students for gainful
employment in a recognized occupation; and
(D) Is a public or other nonprofit institution.
Notwithstanding any of the foregoing provisions of this subsection, all
colleges and universities in this State are institutions of higher
education for purposes of this section.
(z) "Hospital" means an institution which has been licensed, certified
or approved under the law of this State as a hospital.
