As a guide to the interpretation and application of this chapter, the public policy of this State is declared to be as follows:
economic insecurity due to unemployment is a serious menace to the health, morals and welfare of the people of this State.
Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the General
Assembly to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed
worker and the worker's family. The achievement of social security requires protection against this greatest hazard of our
economic life. This can be accomplished by encouraging employers to provide more stable employment and by the systematic accumulation
of funds during periods of employment from which benefits may be paid for periods of unemployment, thus maintaining purchasing
power and limiting the serious social consequences of poor relief assistance. The General Assembly therefore declares that
in its considered judgment the public good and the general welfare of the citizens of this State require the enactment of
this measure, under the police power of the State, for the compulsory setting aside of an unemployment reserve to be used
for the benefit of persons unemployed through no fault of their own.
41 Del. Laws, c. 258; 19 Del. C. 1953, § 3301; 70 Del. Laws, c. 186, § 1.;
§ 3302. Definitions.
As used in this chapter, unless the context clearly requires otherwise, the following terms shall have the meanings designated
in this section:
(1) "Assessments" means the money payments to the State Unemployment Compensation Fund required by this chapter.
(2) "Base period" means the first 4 of the last 5 completed calendar quarters immediately preceding the first day of an individual's
benefit year. However, if the claimant has earned insufficient wages in the first 4 of the last 5 completed calendar quarters
to become eligible for benefits, then such claimant's "base period" shall be the 4 most recent completed calendar quarters
immediately preceding the first day of the claimant's benefit year.
(3) "Benefit year" with respect to any individual means the 1-year period beginning with the first day of the first week with
respect to which the individual first files a valid claim for benefits, and thereafter the 1-year period beginning with the
first day of the first week with respect to which the individual next files a valid claim for benefits after the termination
of the worker's last preceding benefit year. Provided that, when the last day of such 1-year period falls within a week with
respect to which an individual has met the eligibility requirements of this chapter, the ending date of the benefit year may
be extended for a period not to exceed 6 days, and provided further that, for the purpose of filing any subsequent claim for
benefits, the extension of the benefit year as provided in this subdivision shall not change the benefit year ending date
as established prior to such extension.
As used in this subdivision, a "valid claim" is any claim for benefits made in accordance with § 3317 of this title if the
individual has been paid wages for employment required under § 3315(5) of this title.
(4) "Benefits" means the money payments payable to an individual, as provided in this chapter, with respect to the individual's
unemployment.
(5) "Regular benefits" means benefits payable to an individual under this chapter or under any other state law (including
benefits payable to federal civilian employees and to ex-service persons pursuant to 5 U.S.C. Chapter 85) other than additional
and extended benefits.
(6) "Calendar quarter" means the period of 3 consecutive calendar months ending on March 31, June 30, September 30 or December
31, excluding, however, any calendar quarter or portion thereof which occurs prior to January 1, 1938, or the equivalent thereof
as the Department may by regulation prescribe.
(7) "Department" means the Department of Labor.
(8) "Employer" means:
(A)(i) Any employing unit which after December 31, 1971,
(I) In any calendar quarter in either the current or preceding calendar year paid for service in employment wages of $1,500
or more, or
(II) For some portion of a day in each of 20 different calendar weeks, whether or not such weeks were consecutive, in either
the current or preceding calendar year, had in employment at least 1 individual (irrespective of whether the same individual
was in employment in each such day);
(ii) Any employing unit for which agricultural labor as defined in subdivision (11)(A)(vii) of this section is performed after
December 31, 1977;
(iii) Any employing unit for which domestic service as defined in subdivision (11)(B) of this section is performed after December
31, 1977;
(iv)(I) In determining whether or not an employing unit for which service other than domestic service is also performed is
an employer under subparagraphs (i) and (ii) of this paragraph the wages earned or the employment of an employee performing
domestic service after December 31, 1977, shall not be taken into account;
(II) In determining whether or not an employing unit for which service other than agricultural labor is also performed is
an employer under subparagraphs (i) and (iii) of this paragraph, the wages earned or the employment of an employee performing
service in agricultural labor after December 31, 1977, shall not be taken into account. If an employing unit is determined
an employer of agricultural labor, such employing unit shall be determined an employer for the purposes of subparagraph (i)
of this paragraph;
(B) Any employing unit for which service in employment as defined in subdivision (10)(B)(iii) of this section is performed;
(C) Any employing unit for which service in employment, as defined in subdivision (10)(C) of this section, is performed after
December 31, 1971;
(D) Any employing unit (whether or not an employing unit at the time of acquisition) which acquired the organization, trade
or business, or substantially all of the assets thereof, of another employing unit which at the time of such acquisition was
an employer subject to this chapter, or which acquired a part of the organization, trade or business of another employing
unit which at the time of such acquisition was an employer subject to this chapter;
(E) Any employing unit which acquired the organization, trade or business, or substantially all the assets thereof, of another
employing unit (not an employer subject to this chapter) and which would be an employer under paragraph (A) of this subdivision
if, subsequent to such acquisition, it were treated as a single unit with such other employing unit;
(F) Any employing unit which, together with 1 or more other employing units, is owned or controlled (by legally enforceable
means or otherwise) directly or indirectly by the same interests, or which owns or controls 1 or more other employing units
(by legally enforceable means or otherwise), and which if treated as a single unit with such other employing units or interests
or both would be an employer under paragraph (A) of this subdivision;
(G) Any employing unit not an employer by reason of any other paragraph of this subdivision:
(i) For which, within either the current or preceding calendar year, service is or was performed with respect to which such
employing unit is liable for any federal tax against which credit may be taken for assessments required to be paid into a
state unemployment fund; or
(ii) Which, as a condition for approval of this part for full tax credit against the tax imposed by the Federal Unemployment
Tax Act, is required, pursuant to such Act, to be an "employer" under this part;
(H) Any employing unit which, having become an employer under paragraph (A), (B), (C), (D), (E), (F) or (G) of this subdivision,
has not under §§ 3341-3343 of this title ceased to be an employer subject to this chapter; and
(I) For the effective period of its election pursuant to § 3343 of this title, any employing unit which has elected to become
subject to this chapter.
(J) For purposes of this subsection, an employee leasing company, a professional employment organization (PEO) or any other
similar entity shall not be considered to be the employer of any leased employees. The services performed by leased employees
shall be considered to be services performed for the employer client company of the employee leasing company, professional
employment organization (PEO) or any similar entity and the employer client company shall be considered to be the employer
of its leased employees. An employer client company shall be responsible for reporting the gross wages of its leased employees
to the Division of Unemployment Insurance on Form UC-8A (Quarterly Payroll Report) and for paying any assessments due on the
taxable wages of its leased employees to the Division of Unemployment Insurance as reported on Form UC-8 (Quarterly Tax Report).
The unemployment insurance assessment rate for an employer client company, as determined in accordance with § 3350 of this
title, shall include the unemployment insurance claims experience of the employer client company's leased employees. This
paragraph does not apply to a temporary help firm as defined in § 3327 of this title unless such temporary help firm provides
leased employees to an employer client company. In such cases, the employee leasing segment of the temporary help firm's business
shall be subject to this paragraph. For the purpose of this sibdivision, an "employee leasing company," "professional employment
organization (PEO)" or similar entity shall mean an employing unit established to engage in the business of providing leased
employees to an employer client company. For the purpose of this paragraph, an "employer client company" shall mean a company
who enters into an agreement with an employee leasing company, professional employment organization (PEO) or similar entity
to lease any or all of its regular employees.
For purposes of paragraphs (A) and (C) of this subdivision, employment shall include service which would constitute employment
but for the fact that such service is deemed to be performed entirely within another state pursuant to an election under an
arrangement entered into (in accordance with § 3131 of this title) by the Department and an agency charged with the administration
of any other state or federal unemployment compensation law.
For purposes of paragraphs (A)(i)(II) and (C) of this subdivision, if any week includes both December 31 and January 1, the
days of that week up to January 1 shall be deemed 1 calendar week and the days beginning January 1 another such week.
(9)(A) "Employing unit" means any individual or type of organization, including any partnership, association, trust, estate,
joint stock company, insurance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy,
trustee or successor thereof or the legal representative of a deceased person, which has or subsequent to January 1, 1936,
had in its employ 1 or more individuals performing services for it within this State. Employing unit also means any governmental
entity which has in its employ individuals performing services. All individuals performing services within this State for
any employing unit which maintains 2 or more separate establishments within this State shall be deemed to be employed by a
single employing unit for all other purposes of this chapter.
(B) Whenever any employing unit contracts with or has under it any contractor or subcontractor for any work which is part
of its usual trade, occupation, profession or business, such employing unit shall for all the purposes of this chapter be
deemed to employ each individual in the employ of each such contractor or subcontractor for each day during which such individual
is engaged in performing such work and shall be liable for the employer assessments with respect to wages paid to such individuals
by such contractor or subcontractor, except that any employing unit which becomes liable for and pays assessments with respect
to individuals in the employ of any such contractor or subcontractor may recover the same from such contractor or subcontractor.
Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall
be deemed to be employed by such employing unit for all the purposes of this chapter, whether such individual was hired or
paid directly by such employing unit or by such agent or employee, providing the employing unit had actual or constructive
knowledge of the work, except as provided in subdivision (11)(A)(vii) of this section.
(10) "Employment" means:
(A) Any service performed prior to January 1, 1978, which was employment as defined in this subdivision prior to such date
and, subject to the other provisions of this subdivision, service performed after December 31, 1977, including service in
interstate commerce, by
(i) Any officer of a corporation after December 31, 1995.
(ii) Any individual who, under paragraph (K) of this subdivision, has the status of an employee; or
(iii) Any individual other than an individual who is an employee under paragraph (A)(i) or (A)(ii) of this subdivision who
performs services for remuneration for any person:
(I) As an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery
products, beverages (other than milk) or laundry or dry cleaning services, for the driver's principal; or
(II) As a traveling or city salesperson, other than as an agent-driver or commission-driver, engaged upon a full-time basis
in the solicitation on behalf of, and the transmission to, the person's principal (except for sideline sales activities on
behalf of some other person) of orders from wholesalers, retailers, contractors or operators of hotels, restaurants or other
similar establishments for merchandise for resale or supplies for use in their business operations;
(III) As a homeworker performing work, according to specifications furnished by the person for whom the services are performed,
on materials or goods furnished by such person which are required to be returned to such person or a person designated by
such person;
Provided, that for purposes of paragraph (A)(iii) of this subdivision, the term "employment" shall include services described
in (I), (II) and (III) of this subparagraph, performed after December 31, 1977, only if:
1. The contract of service contemplates that substantially all of the services are to be performed personally by such individual;
2. The individual does not have a substantial investment in facilities used in connection with the performance of the services
(other than in facilities for transportation); and
3. The services are not in the nature of a single transaction that is not part of a continuing relationship with the person
for whom the services are performed.
(B)(i) Service performed after December 31, 1971, by an individual in the employ of this State or any of its instrumentalities
(or in the employ of this State and 1 or more other states or their instrumentalities) for a hospital or institution of higher
education located in this State, provided that such service is excluded from "employment" as defined in the Federal Unemployment
Tax Act [26 U.S.C. § 3301 et seq.]; or
(ii) Service performed after June 30, 1972, and before January 1, 1978, by an individual in the employ of this State or any
of its instrumentalities, provided that such service is classified by the State Personnel Commission. As used in this subdivision,
a "classified employee" is a person holding a career job based on a merit system under a specific pay plan in accordance with
merit system screening, regulation and law. Coverage is restricted to services of classified employees not employed on a seasonal
or temporary basis.
(iii) Service performed after December 31, 1977, in the employ of this State or any of its instrumentalities or any political
subdivision thereof or any of its instrumentalities or any instrumentality of more than 1 of the foregoing or any instrumentality
of any of the foregoing and 1 or more other states or political subdivisions, provided that such service is excluded from
"employment" as defined in the Federal Unemployment Tax Act by § 3306(c)(7) [26 U.S.C. § 3306(c)(7)] of that act and is not
excluded from "employment" under paragraph (D)(iii) of this subdivision.
(C) Service performed after December 31, 1971, by an individual in the employ of a religious, charitable, educational or other
organization but only if the following conditions are met:
(i) The service is excluded from "employment" as defined in the Federal Unemployment Tax Act solely by reason of § 3306(c)(8)
of that act [26 U.S.C. § 3306(c)(8)]; and
(ii) The organization had 4 or more individuals in employment for some portion of a day in each of 20 different weeks, whether
or not such weeks were consecutive, within either the current or preceding calendar year, regardless of whether they were
employed at the same moment of time.
(D) For the purposes of paragraphs (B) and (C) of this subdivision, the term "employment" does not apply to service performed:
(i) In the employ of
(I) A church or convention or association of churches; or
(II) An organization which is operated primarily for religious purposes and which is operated, supervised, controlled or principally
supported by a church or convention or association of churches; or
(ii) By a duly ordained, commissioned or licensed minister of a church in the exercise of a ministry or by a member of a religious
order in the exercise of duties required by such order; or
(iii) Prior to January 1, 1978, in the employ of a school which is not an institution of higher education; after December
31, 1977, in the employ of a governmental entity referred to in paragraph (B)(iii) of this subdivision if such service is
performed by an individual in the exercise of duties:
(I) As an elected official;
(II) As a member of a legislative body, or a member of the judiciary, of a state or political subdivision;
(III) As a member of the State National Guard or Air National Guard;
(IV) As an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency;
(V) In a position which, under or pursuant to the laws of this State, is designated as: 1. A major nontenured policymaking
or advisory position, or 2. A policymaking or advisory position the performance of duties of which ordinarily does not require
more than 8 hours per week; or
(iv) In a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity
is impaired by age or physical or mental deficiency or injury or of providing remunerative work for individuals who because
of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market, such service performed
by an individual receiving such rehabilitation or remunerative work; or
(v) As part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal
agency or an agency of a state or political subdivision thereof by an individual receiving such work relief or work training;
or
(vi) Prior to January 1, 1978, for a hospital in a state prison or other state correctional institution and after December
31, 1977, by an inmate of a custodial or penal institution.
(E) The term "employment" shall include the service of an individual who is a citizen of the United States, performed outside
the United States after December 31, 1971 (except in Canada, and in the case of the Virgin Islands after December 31, 1971,
and prior to January 1 of the year following the year in which the United States Secretary of Labor approves the unemployed
compensation law of the Virgin Islands under § 3304(a) [26 U.S.C. § 3304(a)] of the Internal Revenue Code of 1954), in the
employ of an American employer (other than service which is deemed "employment" under paragraph (H) or (I) of this subdivision
or the parallel provisions of another state's law), if:
(i) The employer's principal place of business in the United States is located in this State; or
(ii) The employer has no place of business in the United States, but
(I) The employer is an individual who is a resident of this State; or
(II) The employer is a corporation which is organized under the laws of this State; or
(III) The employer is a partnership or a trust and the number of partners or trustees who are residents of this State is greater
than the number who are residents of any 1 other state; or
(iii) None of the criteria of subparagraphs (i) and (ii) of this paragraph is met but the employer has elected coverage in
this State or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits based
on such service under the law of this State.
(iv) An "American employer" for purposes of this paragraph means a person who is:
(I) An individual who is a resident of the United States; or
(II) A partnership if 2/3 or more of the partners are residents of the United States; or
(III) A trust, if all of the trustees are residents of the United States; or
(IV) A corporation organized under the laws of the United States or of any state.
(v) For purposes of this paragraph, the term "United States" includes the states, the District of Columbia and the Commonwealth
of Puerto Rico.
(F) Notwithstanding paragraph (H) of this subdivision, all service performed after December 31, 1971, by an officer or member
of a crew of an American vessel on or in connection with such vessel if the operating office from which the operation of such
vessel operating on navigable waters within, or within and without, the United States is ordinarily and regularly supervised,
managed, directed and controlled is within this State.
(G) Notwithstanding any other provisions of this subdivision, except as provided in subparagraph (i) of paragraph (A) of this
subdivision, service with respect to which a tax is required to be paid under any federal law imposing a tax against which
credit may be taken for assessments required to be paid into a state unemployment fund or which as a condition for full tax
credit against the tax imposed by the Federal Unemployment Tax Act is required to be covered under this chapter.
(H) The term "employment" shall include an individual's entire service, performed within, or both within and without, this
State if the service is localized in this State. Service shall be deemed to be localized within this State if:
(i) The service is performed entirely within this State; or
(ii) The service is performed both within and without this State but the service performed without this State is incidental
to the individual's service within the State, for example, is temporary or transitory in nature or consists of isolated transactions.
(I) The term "employment" shall include an individual's entire service, performed within, or both within or without, this
State if the service is not localized in any state but some of the service is performed in this State and
(i) The individual's base of operation is in this State; or
(ii) If there is no base of operations, then the place from which such service is directed or controlled is in this State;
or
(iii) The individual's base of operations or place from which such service is directed or controlled is not in any state in
which some part of the service is performed, but the individual's residence is in this State.
(J) Service covered by an election pursuant to § 3343 of this title shall be deemed to be employment during the effective
period of the election.
(K) Notwithstanding any other provisions of this chapter and irrespective of whether the common-law relationship of employer
and employee exists, services performed by an individual for wages, unless and until it is shown to the satisfaction of the
Department that:
(i) Such individual has been and will continue to be free from control and direction in connection with the performance of
such service, both under the individual's contract for the performance of services and in fact; and
(ii) Such service is performed either outside the usual course of the business for which the service is performed or is performed
outside of all the places of business of the enterprise for which the service is performed; and
(iii) Such individual is customarily engaged in an independently established trade, occupation, profession or business of
the same nature as that involved in the service performed.
(11) "Employment" does not include:
(A) Service performed by an individual in agricultural labor, except as provided in subparagraph (vii) of this paragraph.
For purposes of this paragraph, the term "agricultural labor" means any service performed prior to January 1, 1972, which
was agricultural labor as defined in this paragraph prior to such date, and remunerated service performed after December 31,
1971:
(i) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting
any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management
of livestock, bees, poultry and fur-bearing animals and wildlife;
(ii) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation,
improvement or maintenance of such farm and its tools and equipment or in salvaging timber or clearing land of brush and other
debris left by a hurricane, if the major part of such service is performed on a farm;
(iii) In connection with the production or harvesting of any commodity defined as an agricultural commodity in § 15(g) of
the Agricultural Marketing Act, as amended [12 U.S.C. § 1141j] or in connection with the ginning of cotton or in connection
with the operation or maintenance of ditches, canals, reservoirs or waterways, not owned or operated for profit, used exclusively
for supplying and storing water for farming purposes;
(iv)(I) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading,
storing or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any
agricultural or horticultural commodity, but only if such operator produced more than one half of the commodity with respect
to which such service is performed;
(II) In the employ of a group of operators of farms (or a cooperative organization of which such operators are members) in
the performance of service described in subparagraph (iv)(I) of this paragraph but only if such operators produced more than
one half of the commodity with respect to which such service is performed;
(III) Subparagraphs (iv)(I) and (iv)(II) of this paragraph shall not be deemed to be applicable with respect to service performed
in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity
after its delivery to a terminal market for distribution for consumption; or
(v) On a farm operated for profit if such service is not in the course of the employer's trade or business.
(vi) As used in paragraph (A) of this subdivision the term "farm" includes stock, dairy, poultry, fruit, fur-bearing animals
and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising
of agricultural or horticultural commodities and orchards.
(vii) The term "employment" shall include service performed after December 31, 1977, by an individual in agricultural labor
when:
(I) Such service is performed for a person who: 1. During any calendar quarter in either the current or the preceding calendar
year paid remuneration in cash of $20,000 or more to individuals employed in agricultural labor (not taking into account service
in agricultural labor performed before January 1, 1980, by an alien referred to in item (II) of this subparagraph, or 2. For
some portion of a day in each of 20 different calendar weeks, whether or not such days were consecutive, in either the current
or the preceding calendar year, employed in agricultural labor (not taking into account service in agricultural labor performed
before January 1, 1980, by an alien referred to in item (II) of this subparagraph) 10 or more individuals, regardless of whether
they were employed at the same moment of time.
(II) Such service is not performed in agricultural labor if performed prior to January 1, 1980, by an individual who is an
alien admitted to the United States to perform service in agricultural labor pursuant to §§ 214(c) and 101(a)(15)(H) [8 U.S.C.
§ 1184(c) and 8 U.S.C. § 1101(a)(15)(H)] of the Immigration and Nationality Act.
(III) For purposes of this paragraph, any individual who is a member of a crew furnished by a crew leader to perform service
in agricultural labor for any other person shall be treated as an employee of such crew leader: 1. If such crew leader holds
a valid certificate of registration under the Farm Labor Contractor Registration Act of 1963 [former 7 U.S.C. § 2041 et seq.
(See Revisor's note)]; or substantially all the members of such crew operate or maintain tractors, mechanized harvesting or
crop dusting equipment or any other mechanized equipment, which is provided by such crew leader; and 2. If such individual
is not an employee of such other person within the meaning of subdivision (9)(A) of this section.
(IV) For the purpose of this subparagraph in the case of an individual who is furnished by a crew leader to perform services
in agricultural labor for any other person and who is not treated as an employee of such crew leader under item (III) of this
subparagraph: 1. Such other person and not the crew leader shall be treated as the employer of such individual; and 2. Such
other person shall be treated as having paid cash remuneration to such individual in an amount equal to the amount of cash
remuneration paid to such individual by the crew leader (either on the person's own behalf or on behalf of such other person)
for the service in agricultural labor performed for such other person.
(V) For the purposes of this subparagraph, the term "crew leader" means an individual who: 1. Furnishes individuals to perform
services in agricultural labor for any other person; 2. Pays (either on the person's own behalf or on behalf of such other
person) the individuals so furnished by the crew leader for the service in agricultural labor performed by them; and 3. Has
not entered into a written agreement with such other person under which such individual is designated as an employee of such
other person.
(B) Domestic service in a private home performed prior to January 1, 1978. After December 31, 1977, the term "employment"
shall include domestic service in a private home, local college club or local chapter of a college fraternity or sorority
performed for a person who paid cash remuneration of $1,000 or more after December 31, 1977, in the current calendar year
or the preceding calendar year to individuals employed in such domestic service in any calendar quarter.
(C) Service performed by an individual in the employ of the individual's child or spouse and service performed by a child
under the age of 18 in the employ of the child's father or mother.
(D) Service performed after December 31, 1971, in the employ of this State, or of any political subdivision or of any instrumentality
of this State or its political subdivision except as provided in subdivision (10)(B) of this section.
(E) Service performed after December 31, 1971, in the employ of a corporation, community chest, fund or foundation organized
and operated exclusively for religious, charitable, scientific, testing for public safety, literary or educational purposes
or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any
private shareholder or individual, no substantial part of the activities of which is carrying on propaganda or otherwise attempting
to influence legislation and which does not participate in, or intervene in (including the publishing or distributing of statements)
any political campaign on behalf of any candidate for public office, except as provided in subdivision (10)(C) of this section.
(F) Service with respect to which unemployment compensation is payable under an unemployment compensation system established
by an act of Congress. The Department shall enter into agreements with the proper agencies under such act of Congress, which
agreements shall become effective 10 days after publication thereof in the manner provided in § 3122 of this title for general
rules and shall provide reciprocal treatment to individuals who have, after acquiring potential rights to benefits under this
chapter, acquired rights to unemployment compensation under such act of Congress, or who have, after acquiring potential rights
to unemployment compensation under such act of Congress, acquired rights to benefits under this chapter.
(G) Service performed by an officer of any building and loan association, fraternal order, society, labor union, political
club or political organization service club, alumni association or any corporation, association, society or club organized
and operated exclusively for social or civic purposes. The exemptions mentioned in this paragraph shall apply only when the
service performed by the officer is a part-time service and only when the remuneration of the officer performing the part-time
service does not exceed the sum of $75 in any calendar quarter in any calendar year.
(H) Service performed by an individual for an employer as an insurance agent or real estate agent, or as an insurance solicitor
or real estate solicitor, if all such service performed by such individual for such employer is performed for remuneration
solely by way of commissions.
(I) Service covered by an arrangement between the Department and the agency charged with the administration of any other state
or federal unemployment compensation law pursuant to which all services performed by an individual for an employing unit during
the period covered by such employing unit's duly approved election are deemed to be performed entirely within such agency's
state.
(J) Service performed after December 31, 1971, in the employ of a school, college or university, if such service is performed
by a student who is enrolled and is regularly attending classes at such school, college or university.
(K) Service performed after December 31, 1971, by an individual who is enrolled at a nonprofit or public educational institution
which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance
at the place where its educational activities are carried on as a student in a full-time program, taken for credit at such
institution, which combines academic instruction with work experience, if such service is an integral part of such program
and such institution has so certified to the employer, except that this subparagraph shall not apply to service performed
in a program established for or on behalf of an employer or a group of employers.
(L) Service performed after December 31, 1971, in the employ of a hospital if such service is performed by a patient of the
hospital, as defined in subdivision (14) of this section.
(M) Service performed after June 30, 1972, in the employ of this State or any of its political subdivisions by an elected
official, an official appointed by the Governor or an official compensated on a fee basis.
(N) Service performed as a direct seller as defined in § 3508 of the Internal Revenue Code of 1954 [26 U.S.C. § 3508], as
amended.
(12) "Employment office" means a free public employment office or branch thereof operated by this State or as a part of a
state-controlled system of public employment offices or by a federal agency charged with the administration of an unemployment
compensation program or free public employment offices.
(13) "Fund" means the Unemployment Compensation Fund established by this title to which all assessments required and from
which all benefits provided under this chapter shall be paid.
(14) "Hospital" means an institution which has been licensed, certified or approved by the Department of Health and Social
Services as a hospital.
(15)(A) "Institution of higher education," for the purposes of this section, means an educational institution which:
(i) Admits as regular students only individuals having a certificate of graduation from a high school or the recognized equivalent
of such a certificate;
(ii) Is legally authorized in this State to provide a program of education beyond high school;
(iii) Provides an educational program for which it awards a bachelor's or higher degree, or provides a program which is acceptable
for full credit toward such a degree, a program of postgraduate or postdoctoral studies or a program of training to prepare
students for gainful employment in a recognized occupation; and
(iv) Is a public or other nonprofit institution.
(v) Notwithstanding any of the foregoing provisions of this subdivision, all colleges and universities in this State are institutions
of higher education for purposes of this section.
(B) "Educational institution" (including an institution of higher education) is:
(i) One in which participants, trainees or students are offered an organized course of study or training designed to transfer
to them knowledge, skills, information, doctrines, attitudes or abilities from, by or under the guidance of an instructor
or teacher; and
(ii) Approved, licensed or issued a permit to operate as a school by the State Department of Education or other governmental
agency that is authorized within the State to approve, license or issue a permit for the operations of a school; and
(iii) The courses of study or training which it offers may be academic, technical, trade or preparation for gainful employment
in a recognized occupation.
(16) "States" includes, in addition to the states of the United States of America, the District of Columbia, the Commonwealth
of Puerto Rico and Virgin Islands.
(17) "Unemployment" exists and an individual is "unemployed" in any week during which the individual performs no services
and with respect to which no wages are payable to the individual, or in any week of less than full-time work if the wages
payable to the individual with respect to such week are less than the individual's weekly benefit amount plus whichever is
the greater of $10 or 50% of the individual's weekly benefit amount. The Department shall prescribe regulations applicable
to unemployed individuals making such distinctions in the procedures as to total unemployment, part-total unemployment, partial
unemployment of individuals attached to their regular jobs and other forms of short-time work as the Department deems necessary.
(18) "Wages" means all remuneration for personal services, including commissions, bonuses, dismissal payments, holiday pay,
back pay awards and the cash value of all remuneration in any medium other than cash.
Gratuities customarily received by an individual in the course of the individual's work from persons other than the individual's
employing unit shall be treated as wages received from the individual's employing unit.
The reasonable cash value of remuneration in any medium other than cash and the reasonable amount of gratuities shall be estimated
and determined in accordance with rules prescribed by the Department.
(19) "Wages" does not include:
(A) For the purpose of § 3345 and § 3348 of this title:
(i) After December 31, 1982, that part of the remuneration which, after remuneration equal to $7,200 with respect to employment
during any calendar year, is paid to an individual by an employer or the employer's predecessor during such calendar year;
or
(ii) After December 31, 1983, that part of the remuneration which, after remuneration equal to $8,000 (or such greater amount
as may be specified as the taxable wage base in the Federal Unemployment Tax Act) with respect to employment during any calendar
year, is paid to an individual by an employer or the employer's predecessor during such calendar year; or
(iii) After December 31, 1985, that part of the remuneration which, after remuneration equal to $8,250 (or such greater amount
as may be specified as the taxable wage base in the Federal Unemployment Tax Act) with respect to employment during any calendar
year, is paid to an individual by an employer or the employer's predecessor during such calendar year; or
(iv) After December 31, 1986, that part of the remuneration which, after remuneration equal to $8,500 (or such greater amount
as may be specified as the taxable wage base in the Federal Unemployment Tax Act) with respect to employment during any calendar
year, is paid to an individual by an employer or the employer's predecessor during such calendar year; or
(v) After December 31, 2007, that part of the remuneration which, after remuneration equal to $10,500 (or such greater amount
as may be specified as the taxable wage base in the Federal Unemployment Tax Act [26 U.S.C. § 3301 et seq.]) with respect
to employment during any calendar year, is paid to an individual by an employer or the employer's predecessor during such
calendar year.
(vi) For the purpose of this paragraph, the term "employment" shall include service constituting employment under any unemployment
compensation law of another state.
(B) The amount of any payment with respect to services performed after December 31, 1940, to or on behalf of an individual
in its employ under a plan or system established by an employing unit which makes provision for individuals in its employ
generally or for a class or classes of such individuals (including any amount paid by an employing unit for insurance or annuities
or into a fund to provide for any such payment) on account of:
(i) Retirement; or
(ii) Sickness or accident disability; or
(iii) Medical and hospitalization expenses in connection with sickness or accident disability; or
(iv) Death, provided the individual in its employ:
(I) Has not the option to receive instead of provision for such death benefit any part of such payment or if such death benefit
is insured any part of the premiums (or contributions to premiums) paid by the individual's employing unit, and
(II) Has not the right, under the provisions of the plan or system or policy of insurance providing for such death benefit,
to assign such benefit or to receive a cash consideration in lieu of such benefit either upon withdrawal from the plan or
system providing for such benefit or upon termination of such plan or system or policy of insurance or of the individual's
services with such employing unit.
(C) The payment by an employing unit (without deduction from the remuneration of the individual in its employ) of the tax
imposed upon an individual in its employ under § 3101 [26 U.S.C. § 3101] of the Federal Internal Revenue Code with respect
to services performed after December 31, 1954.
(D) Vacation pay paid during or incident to any period of unemployment.
(E) Any attendance bonus paid during or incident to any period of unemployment.
(20) "Week" means calendar week, ending at midnight Saturday, but all work performed and wages earned during a working shift
which starts before midnight Saturday shall be included in the week in which such shift begins. For purposes of partial claims
and mass layoff claims, the Department may authorize the employer's payroll week.
(21) "Work" means service, including service in interstate commerce, performed for wages or under any contract of hire, written
or oral, express or implied.
(22) "Statewide average weekly wage" shall be the amount computed annually as of July 1 by dividing the aggregate amount of
wages irrespective of the limitation on the amount of wages subject to assessment under subdivision (19) of this section for
services in employment reported by employers as paid during the first 4 of the last 6 completed calendar quarters immediately
preceding the effective date of the computation, by a figure representing 52 times the 12-month average of the number of employees
in the pay period containing the twelfth day of each month during the same 4 calendar quarters as reported by such employers.
The statewide average weekly wage shall be effective on the 1st of July of each year computed.
41 Del. Laws, c. 258, § 2; 42 Del. Laws, c. 196, §§ 1-5; 43 Del. Laws, c. 278; 43 Del. Laws, c. 279; 43 Del. Laws, c. 280, §§ 1, 2; 43 Del. Laws, c. 281, §§ 1, 2; 43 Del. Laws, c. 282, § 1; 44 Del. Laws, c. 207, § 1; 45 Del. Laws, c. 267, §§ 1-4; 46 Del. Laws, c. 162, §§ 1, 2; 19 Del. C. 1953, § 3302; 49 Del. Laws, c. 220, § 19; 50 Del. Laws, c. 115, §§ 1-3; 50 Del. Laws, c. 117, § 1; 50 Del. Laws, c. 559, § 1; 53 Del. Laws, c. 79, § 1; 53 Del. Laws, c. 158; 53 Del. Laws, c. 232, § 1; 57 Del. Laws, c. 521, § 1; 57 Del. Laws, c. 669, §§ 5A, 5B; 58 Del. Laws, c. 143, § 5; 58 Del. Laws, c. 359; 58 Del. Laws, c. 511, § 39; 58 Del. Laws, c. 522, §§ 6-14; 58 Del. Laws, c. 530, §§ 1, 2; 58 Del. Laws, c. 573, §§ 1, 2, 4; 59 Del. Laws, c. 337, § 1; 60 Del. Laws, c. 138, § 1; 61 Del. Laws, c. 186, §§ 1-14(b); 61 Del. Laws, c. 452, § 1; 63 Del. Laws, c. 76, §§ 1, 2, 8; 63 Del. Laws, c. 427, §§ 2-4; 64 Del. Laws,c. 91, §§ 3-6; 64 Del. Laws, c. 114, § 1; 65 Del. Laws, c. 44, § 1; 65 Del. Laws, c. 45, § 1; 65 Del. Laws, c. 367, § 1; 66 Del. Laws, c. 73, § 1; 66 Del. Laws, c. 380, § 1; 66 Del. Laws, c. 390, § 1; 70 Del. Laws, c. 43, §§ 2, 3; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 229, § 1; 71 Del. Laws, c. 147, § 1; 73 Del. Laws, c. 65, § 20; 73 Del. Laws, c. 271, § 1; 76 Del. Laws, c. 46, §§ 1-3; 77 Del. Laws, c. 71, § 1.;
§ 3303. Fraternal benefit societies subject to assessment payments.
Section 6140 of Title 18 [Repealed] shall not relieve the fraternal benefit societies mentioned in such § 6140 of Title 18
[Repealed] from the payment of the assessments required by this chapter.
41 Del. Laws, c. 258, § 2; 42 Del. Laws, c. 196, § 6; 19 Del. C. 1953, § 3303; 53 Del. Laws, c. 79, § 1.;
§ 3304. Day of filing; computation of time.
When any notice, report or other document is required to be filed under this chapter and the same is forwarded by mail to
the Department, the day of mailing shall be deemed to be the day of filing.
When the day, or the last day, for doing any act required to be done falls on Saturday, Sunday or a holiday, the act may be
done on the first ensuing day that is not a Saturday, Sunday or holiday.
41 Del. Laws, c. 258, § 2; 48 Del. Laws, c. 179, § 1; 19 Del. C. 1953, § 3304; 57 Del. Laws, c. 669, § 5B.;
§ 3305. Termination of chapter upon amendment, repeal or declaration of unconstitutionality of federal Social Security Act;
disposition of moneys.
This chapter is enacted as part of a national plan of social security in conformity to the federal Social Security Act [42
U.S.C. § 301 et seq.].
In the event that the tax levied under § 3301 of the Federal Unemployment Tax Act [26 U.S.C. § 3301], against which assessments
under this chapter may be credited, is amended or repealed by Congress or declared unconstitutional by the Supreme Court of
the United States, with the result that no portion of the assessments required under this chapter may be credited against
such federal tax, the provisions of this chapter, except those of this section and except as otherwise provided in this chapter,
shall become inoperative. Thereupon, all assets standing to the credit of this State in the Unemployment Trust Fund in the
United States Treasury shall be promptly requisitioned by the Department of Labor, which is granted continuing authority for
the purposes of this section, and, together with all assets in the Unemployment Compensation Fund, shall be refunded to persons
required to pay assessments under this chapter in accordance with the regulations prescribed by the Department.
Any interest or earnings of the Fund and any fines or penalties collected pursuant to this chapter shall be available to the
Department to pay for the costs of making refunds pursuant to this section.
In the case of the Unemployment Compensation Administration Fund, any moneys therein received from the Secretary of Labor
of the United States shall thereafter be dealt with by the Treasurer of this State in accordance with the regulations of the
Secretary of Labor of the United States and the conditions of the grant to this State by the Secretary of Labor of the United
States. Any assets in the Unemployment Compensation Administration Fund which have been received by this State from the United
States employment service or which have been appropriated by the General Assembly for the State Employment Service shall remain
available to the State Employment Service, which Service shall continue in existence as if this chapter had not been enacted.
The same action shall be taken with respect to assets in the Unemployment Compensation Fund, the Unemployment Trust Fund and
the Unemployment Compensation Administration Fund in the event that this chapter is repealed by the General Assembly or finally
declared invalid by the Supreme Court of the State or by the Supreme Court of the United States.
41 Del. Laws, c. 258, § 22; 19 Del. C. 1953, § 3305; 53 Del. Laws, c. 79, § 4; 53 Del. Laws, c. 232, § 1; 57 Del. Laws, c. 669, §§ 5B-5D; 58 Del. Laws, c. 522, § 15; 63 Del. Laws, c. 427, § 5.;
§ 3306. Reservation of power to amend or repeal chapter.
The General Assembly reserves the right to amend or repeal all or any part of this chapter at any time, and there shall be
no vested private right of any kind against such amendment or repeal. All the rights, privileges or immunities conferred by
this chapter or by acts done pursuant thereto shall exist subject to the power of the General Assembly to amend or repeal
this chapter at any time.
41 Del. Laws, c. 258, § 20; 19 Del. C. 1953, § 3306.;
As a guide to the interpretation and application of this chapter, the public policy of this State is declared to be as follows:
economic insecurity due to unemployment is a serious menace to the health, morals and welfare of the people of this State.
Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the General
Assembly to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed
worker and the worker's family. The achievement of social security requires protection against this greatest hazard of our
economic life. This can be accomplished by encouraging employers to provide more stable employment and by the systematic accumulation
of funds during periods of employment from which benefits may be paid for periods of unemployment, thus maintaining purchasing
power and limiting the serious social consequences of poor relief assistance. The General Assembly therefore declares that
in its considered judgment the public good and the general welfare of the citizens of this State require the enactment of
this measure, under the police power of the State, for the compulsory setting aside of an unemployment reserve to be used
for the benefit of persons unemployed through no fault of their own.
41 Del. Laws, c. 258; 19 Del. C. 1953, § 3301; 70 Del. Laws, c. 186, § 1.;
§ 3302. Definitions.
As used in this chapter, unless the context clearly requires otherwise, the following terms shall have the meanings designated
in this section:
(1) "Assessments" means the money payments to the State Unemployment Compensation Fund required by this chapter.
(2) "Base period" means the first 4 of the last 5 completed calendar quarters immediately preceding the first day of an individual's
benefit year. However, if the claimant has earned insufficient wages in the first 4 of the last 5 completed calendar quarters
to become eligible for benefits, then such claimant's "base period" shall be the 4 most recent completed calendar quarters
immediately preceding the first day of the claimant's benefit year.
(3) "Benefit year" with respect to any individual means the 1-year period beginning with the first day of the first week with
respect to which the individual first files a valid claim for benefits, and thereafter the 1-year period beginning with the
first day of the first week with respect to which the individual next files a valid claim for benefits after the termination
of the worker's last preceding benefit year. Provided that, when the last day of such 1-year period falls within a week with
respect to which an individual has met the eligibility requirements of this chapter, the ending date of the benefit year may
be extended for a period not to exceed 6 days, and provided further that, for the purpose of filing any subsequent claim for
benefits, the extension of the benefit year as provided in this subdivision shall not change the benefit year ending date
as established prior to such extension.
As used in this subdivision, a "valid claim" is any claim for benefits made in accordance with § 3317 of this title if the
individual has been paid wages for employment required under § 3315(5) of this title.
(4) "Benefits" means the money payments payable to an individual, as provided in this chapter, with respect to the individual's
unemployment.
(5) "Regular benefits" means benefits payable to an individual under this chapter or under any other state law (including
benefits payable to federal civilian employees and to ex-service persons pursuant to 5 U.S.C. Chapter 85) other than additional
and extended benefits.
(6) "Calendar quarter" means the period of 3 consecutive calendar months ending on March 31, June 30, September 30 or December
31, excluding, however, any calendar quarter or portion thereof which occurs prior to January 1, 1938, or the equivalent thereof
as the Department may by regulation prescribe.
(7) "Department" means the Department of Labor.
(8) "Employer" means:
(A)(i) Any employing unit which after December 31, 1971,
(I) In any calendar quarter in either the current or preceding calendar year paid for service in employment wages of $1,500
or more, or
(II) For some portion of a day in each of 20 different calendar weeks, whether or not such weeks were consecutive, in either
the current or preceding calendar year, had in employment at least 1 individual (irrespective of whether the same individual
was in employment in each such day);
(ii) Any employing unit for which agricultural labor as defined in subdivision (11)(A)(vii) of this section is performed after
December 31, 1977;
(iii) Any employing unit for which domestic service as defined in subdivision (11)(B) of this section is performed after December
31, 1977;
(iv)(I) In determining whether or not an employing unit for which service other than domestic service is also performed is
an employer under subparagraphs (i) and (ii) of this paragraph the wages earned or the employment of an employee performing
domestic service after December 31, 1977, shall not be taken into account;
(II) In determining whether or not an employing unit for which service other than agricultural labor is also performed is
an employer under subparagraphs (i) and (iii) of this paragraph, the wages earned or the employment of an employee performing
service in agricultural labor after December 31, 1977, shall not be taken into account. If an employing unit is determined
an employer of agricultural labor, such employing unit shall be determined an employer for the purposes of subparagraph (i)
of this paragraph;
(B) Any employing unit for which service in employment as defined in subdivision (10)(B)(iii) of this section is performed;
(C) Any employing unit for which service in employment, as defined in subdivision (10)(C) of this section, is performed after
December 31, 1971;
(D) Any employing unit (whether or not an employing unit at the time of acquisition) which acquired the organization, trade
or business, or substantially all of the assets thereof, of another employing unit which at the time of such acquisition was
an employer subject to this chapter, or which acquired a part of the organization, trade or business of another employing
unit which at the time of such acquisition was an employer subject to this chapter;
(E) Any employing unit which acquired the organization, trade or business, or substantially all the assets thereof, of another
employing unit (not an employer subject to this chapter) and which would be an employer under paragraph (A) of this subdivision
if, subsequent to such acquisition, it were treated as a single unit with such other employing unit;
(F) Any employing unit which, together with 1 or more other employing units, is owned or controlled (by legally enforceable
means or otherwise) directly or indirectly by the same interests, or which owns or controls 1 or more other employing units
(by legally enforceable means or otherwise), and which if treated as a single unit with such other employing units or interests
or both would be an employer under paragraph (A) of this subdivision;
(G) Any employing unit not an employer by reason of any other paragraph of this subdivision:
(i) For which, within either the current or preceding calendar year, service is or was performed with respect to which such
employing unit is liable for any federal tax against which credit may be taken for assessments required to be paid into a
state unemployment fund; or
(ii) Which, as a condition for approval of this part for full tax credit against the tax imposed by the Federal Unemployment
Tax Act, is required, pursuant to such Act, to be an "employer" under this part;
(H) Any employing unit which, having become an employer under paragraph (A), (B), (C), (D), (E), (F) or (G) of this subdivision,
has not under §§ 3341-3343 of this title ceased to be an employer subject to this chapter; and
(I) For the effective period of its election pursuant to § 3343 of this title, any employing unit which has elected to become
subject to this chapter.
(J) For purposes of this subsection, an employee leasing company, a professional employment organization (PEO) or any other
similar entity shall not be considered to be the employer of any leased employees. The services performed by leased employees
shall be considered to be services performed for the employer client company of the employee leasing company, professional
employment organization (PEO) or any similar entity and the employer client company shall be considered to be the employer
of its leased employees. An employer client company shall be responsible for reporting the gross wages of its leased employees
to the Division of Unemployment Insurance on Form UC-8A (Quarterly Payroll Report) and for paying any assessments due on the
taxable wages of its leased employees to the Division of Unemployment Insurance as reported on Form UC-8 (Quarterly Tax Report).
The unemployment insurance assessment rate for an employer client company, as determined in accordance with § 3350 of this
title, shall include the unemployment insurance claims experience of the employer client company's leased employees. This
paragraph does not apply to a temporary help firm as defined in § 3327 of this title unless such temporary help firm provides
leased employees to an employer client company. In such cases, the employee leasing segment of the temporary help firm's business
shall be subject to this paragraph. For the purpose of this sibdivision, an "employee leasing company," "professional employment
organization (PEO)" or similar entity shall mean an employing unit established to engage in the business of providing leased
employees to an employer client company. For the purpose of this paragraph, an "employer client company" shall mean a company
who enters into an agreement with an employee leasing company, professional employment organization (PEO) or similar entity
to lease any or all of its regular employees.
For purposes of paragraphs (A) and (C) of this subdivision, employment shall include service which would constitute employment
but for the fact that such service is deemed to be performed entirely within another state pursuant to an election under an
arrangement entered into (in accordance with § 3131 of this title) by the Department and an agency charged with the administration
of any other state or federal unemployment compensation law.
For purposes of paragraphs (A)(i)(II) and (C) of this subdivision, if any week includes both December 31 and January 1, the
days of that week up to January 1 shall be deemed 1 calendar week and the days beginning January 1 another such week.
(9)(A) "Employing unit" means any individual or type of organization, including any partnership, association, trust, estate,
joint stock company, insurance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy,
trustee or successor thereof or the legal representative of a deceased person, which has or subsequent to January 1, 1936,
had in its employ 1 or more individuals performing services for it within this State. Employing unit also means any governmental
entity which has in its employ individuals performing services. All individuals performing services within this State for
any employing unit which maintains 2 or more separate establishments within this State shall be deemed to be employed by a
single employing unit for all other purposes of this chapter.
(B) Whenever any employing unit contracts with or has under it any contractor or subcontractor for any work which is part
of its usual trade, occupation, profession or business, such employing unit shall for all the purposes of this chapter be
deemed to employ each individual in the employ of each such contractor or subcontractor for each day during which such individual
is engaged in performing such work and shall be liable for the employer assessments with respect to wages paid to such individuals
by such contractor or subcontractor, except that any employing unit which becomes liable for and pays assessments with respect
to individuals in the employ of any such contractor or subcontractor may recover the same from such contractor or subcontractor.
Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall
be deemed to be employed by such employing unit for all the purposes of this chapter, whether such individual was hired or
paid directly by such employing unit or by such agent or employee, providing the employing unit had actual or constructive
knowledge of the work, except as provided in subdivision (11)(A)(vii) of this section.
(10) "Employment" means:
(A) Any service performed prior to January 1, 1978, which was employment as defined in this subdivision prior to such date
and, subject to the other provisions of this subdivision, service performed after December 31, 1977, including service in
interstate commerce, by
(i) Any officer of a corporation after December 31, 1995.
(ii) Any individual who, under paragraph (K) of this subdivision, has the status of an employee; or
(iii) Any individual other than an individual who is an employee under paragraph (A)(i) or (A)(ii) of this subdivision who
performs services for remuneration for any person:
(I) As an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery
products, beverages (other than milk) or laundry or dry cleaning services, for the driver's principal; or
(II) As a traveling or city salesperson, other than as an agent-driver or commission-driver, engaged upon a full-time basis
in the solicitation on behalf of, and the transmission to, the person's principal (except for sideline sales activities on
behalf of some other person) of orders from wholesalers, retailers, contractors or operators of hotels, restaurants or other
similar establishments for merchandise for resale or supplies for use in their business operations;
(III) As a homeworker performing work, according to specifications furnished by the person for whom the services are performed,
on materials or goods furnished by such person which are required to be returned to such person or a person designated by
such person;
Provided, that for purposes of paragraph (A)(iii) of this subdivision, the term "employment" shall include services described
in (I), (II) and (III) of this subparagraph, performed after December 31, 1977, only if:
1. The contract of service contemplates that substantially all of the services are to be performed personally by such individual;
2. The individual does not have a substantial investment in facilities used in connection with the performance of the services
(other than in facilities for transportation); and
3. The services are not in the nature of a single transaction that is not part of a continuing relationship with the person
for whom the services are performed.
(B)(i) Service performed after December 31, 1971, by an individual in the employ of this State or any of its instrumentalities
(or in the employ of this State and 1 or more other states or their instrumentalities) for a hospital or institution of higher
education located in this State, provided that such service is excluded from "employment" as defined in the Federal Unemployment
Tax Act [26 U.S.C. § 3301 et seq.]; or
(ii) Service performed after June 30, 1972, and before January 1, 1978, by an individual in the employ of this State or any
of its instrumentalities, provided that such service is classified by the State Personnel Commission. As used in this subdivision,
a "classified employee" is a person holding a career job based on a merit system under a specific pay plan in accordance with
merit system screening, regulation and law. Coverage is restricted to services of classified employees not employed on a seasonal
or temporary basis.
(iii) Service performed after December 31, 1977, in the employ of this State or any of its instrumentalities or any political
subdivision thereof or any of its instrumentalities or any instrumentality of more than 1 of the foregoing or any instrumentality
of any of the foregoing and 1 or more other states or political subdivisions, provided that such service is excluded from
"employment" as defined in the Federal Unemployment Tax Act by § 3306(c)(7) [26 U.S.C. § 3306(c)(7)] of that act and is not
excluded from "employment" under paragraph (D)(iii) of this subdivision.
(C) Service performed after December 31, 1971, by an individual in the employ of a religious, charitable, educational or other
organization but only if the following conditions are met:
(i) The service is excluded from "employment" as defined in the Federal Unemployment Tax Act solely by reason of § 3306(c)(8)
of that act [26 U.S.C. § 3306(c)(8)]; and
(ii) The organization had 4 or more individuals in employment for some portion of a day in each of 20 different weeks, whether
or not such weeks were consecutive, within either the current or preceding calendar year, regardless of whether they were
employed at the same moment of time.
(D) For the purposes of paragraphs (B) and (C) of this subdivision, the term "employment" does not apply to service performed:
(i) In the employ of
(I) A church or convention or association of churches; or
(II) An organization which is operated primarily for religious purposes and which is operated, supervised, controlled or principally
supported by a church or convention or association of churches; or
(ii) By a duly ordained, commissioned or licensed minister of a church in the exercise of a ministry or by a member of a religious
order in the exercise of duties required by such order; or
(iii) Prior to January 1, 1978, in the employ of a school which is not an institution of higher education; after December
31, 1977, in the employ of a governmental entity referred to in paragraph (B)(iii) of this subdivision if such service is
performed by an individual in the exercise of duties:
(I) As an elected official;
(II) As a member of a legislative body, or a member of the judiciary, of a state or political subdivision;
(III) As a member of the State National Guard or Air National Guard;
(IV) As an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency;
(V) In a position which, under or pursuant to the laws of this State, is designated as: 1. A major nontenured policymaking
or advisory position, or 2. A policymaking or advisory position the performance of duties of which ordinarily does not require
more than 8 hours per week; or
(iv) In a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity
is impaired by age or physical or mental deficiency or injury or of providing remunerative work for individuals who because
of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market, such service performed
by an individual receiving such rehabilitation or remunerative work; or
(v) As part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal
agency or an agency of a state or political subdivision thereof by an individual receiving such work relief or work training;
or
(vi) Prior to January 1, 1978, for a hospital in a state prison or other state correctional institution and after December
31, 1977, by an inmate of a custodial or penal institution.
(E) The term "employment" shall include the service of an individual who is a citizen of the United States, performed outside
the United States after December 31, 1971 (except in Canada, and in the case of the Virgin Islands after December 31, 1971,
and prior to January 1 of the year following the year in which the United States Secretary of Labor approves the unemployed
compensation law of the Virgin Islands under § 3304(a) [26 U.S.C. § 3304(a)] of the Internal Revenue Code of 1954), in the
employ of an American employer (other than service which is deemed "employment" under paragraph (H) or (I) of this subdivision
or the parallel provisions of another state's law), if:
(i) The employer's principal place of business in the United States is located in this State; or
(ii) The employer has no place of business in the United States, but
(I) The employer is an individual who is a resident of this State; or
(II) The employer is a corporation which is organized under the laws of this State; or
(III) The employer is a partnership or a trust and the number of partners or trustees who are residents of this State is greater
than the number who are residents of any 1 other state; or
(iii) None of the criteria of subparagraphs (i) and (ii) of this paragraph is met but the employer has elected coverage in
this State or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits based
on such service under the law of this State.
(iv) An "American employer" for purposes of this paragraph means a person who is:
(I) An individual who is a resident of the United States; or
(II) A partnership if 2/3 or more of the partners are residents of the United States; or
(III) A trust, if all of the trustees are residents of the United States; or
(IV) A corporation organized under the laws of the United States or of any state.
(v) For purposes of this paragraph, the term "United States" includes the states, the District of Columbia and the Commonwealth
of Puerto Rico.
(F) Notwithstanding paragraph (H) of this subdivision, all service performed after December 31, 1971, by an officer or member
of a crew of an American vessel on or in connection with such vessel if the operating office from which the operation of such
vessel operating on navigable waters within, or within and without, the United States is ordinarily and regularly supervised,
managed, directed and controlled is within this State.
(G) Notwithstanding any other provisions of this subdivision, except as provided in subparagraph (i) of paragraph (A) of this
subdivision, service with respect to which a tax is required to be paid under any federal law imposing a tax against which
credit may be taken for assessments required to be paid into a state unemployment fund or which as a condition for full tax
credit against the tax imposed by the Federal Unemployment Tax Act is required to be covered under this chapter.
(H) The term "employment" shall include an individual's entire service, performed within, or both within and without, this
State if the service is localized in this State. Service shall be deemed to be localized within this State if:
(i) The service is performed entirely within this State; or
(ii) The service is performed both within and without this State but the service performed without this State is incidental
to the individual's service within the State, for example, is temporary or transitory in nature or consists of isolated transactions.
(I) The term "employment" shall include an individual's entire service, performed within, or both within or without, this
State if the service is not localized in any state but some of the service is performed in this State and
(i) The individual's base of operation is in this State; or
(ii) If there is no base of operations, then the place from which such service is directed or controlled is in this State;
or
(iii) The individual's base of operations or place from which such service is directed or controlled is not in any state in
which some part of the service is performed, but the individual's residence is in this State.
(J) Service covered by an election pursuant to § 3343 of this title shall be deemed to be employment during the effective
period of the election.
(K) Notwithstanding any other provisions of this chapter and irrespective of whether the common-law relationship of employer
and employee exists, services performed by an individual for wages, unless and until it is shown to the satisfaction of the
Department that:
(i) Such individual has been and will continue to be free from control and direction in connection with the performance of
such service, both under the individual's contract for the performance of services and in fact; and
(ii) Such service is performed either outside the usual course of the business for which the service is performed or is performed
outside of all the places of business of the enterprise for which the service is performed; and
(iii) Such individual is customarily engaged in an independently established trade, occupation, profession or business of
the same nature as that involved in the service performed.
(11) "Employment" does not include:
(A) Service performed by an individual in agricultural labor, except as provided in subparagraph (vii) of this paragraph.
For purposes of this paragraph, the term "agricultural labor" means any service performed prior to January 1, 1972, which
was agricultural labor as defined in this paragraph prior to such date, and remunerated service performed after December 31,
1971:
(i) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting
any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management
of livestock, bees, poultry and fur-bearing animals and wildlife;
(ii) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation,
improvement or maintenance of such farm and its tools and equipment or in salvaging timber or clearing land of brush and other
debris left by a hurricane, if the major part of such service is performed on a farm;
(iii) In connection with the production or harvesting of any commodity defined as an agricultural commodity in § 15(g) of
the Agricultural Marketing Act, as amended [12 U.S.C. § 1141j] or in connection with the ginning of cotton or in connection
with the operation or maintenance of ditches, canals, reservoirs or waterways, not owned or operated for profit, used exclusively
for supplying and storing water for farming purposes;
(iv)(I) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading,
storing or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any
agricultural or horticultural commodity, but only if such operator produced more than one half of the commodity with respect
to which such service is performed;
(II) In the employ of a group of operators of farms (or a cooperative organization of which such operators are members) in
the performance of service described in subparagraph (iv)(I) of this paragraph but only if such operators produced more than
one half of the commodity with respect to which such service is performed;
(III) Subparagraphs (iv)(I) and (iv)(II) of this paragraph shall not be deemed to be applicable with respect to service performed
in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity
after its delivery to a terminal market for distribution for consumption; or
(v) On a farm operated for profit if such service is not in the course of the employer's trade or business.
(vi) As used in paragraph (A) of this subdivision the term "farm" includes stock, dairy, poultry, fruit, fur-bearing animals
and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising
of agricultural or horticultural commodities and orchards.
(vii) The term "employment" shall include service performed after December 31, 1977, by an individual in agricultural labor
when:
(I) Such service is performed for a person who: 1. During any calendar quarter in either the current or the preceding calendar
year paid remuneration in cash of $20,000 or more to individuals employed in agricultural labor (not taking into account service
in agricultural labor performed before January 1, 1980, by an alien referred to in item (II) of this subparagraph, or 2. For
some portion of a day in each of 20 different calendar weeks, whether or not such days were consecutive, in either the current
or the preceding calendar year, employed in agricultural labor (not taking into account service in agricultural labor performed
before January 1, 1980, by an alien referred to in item (II) of this subparagraph) 10 or more individuals, regardless of whether
they were employed at the same moment of time.
(II) Such service is not performed in agricultural labor if performed prior to January 1, 1980, by an individual who is an
alien admitted to the United States to perform service in agricultural labor pursuant to §§ 214(c) and 101(a)(15)(H) [8 U.S.C.
§ 1184(c) and 8 U.S.C. § 1101(a)(15)(H)] of the Immigration and Nationality Act.
(III) For purposes of this paragraph, any individual who is a member of a crew furnished by a crew leader to perform service
in agricultural labor for any other person shall be treated as an employee of such crew leader: 1. If such crew leader holds
a valid certificate of registration under the Farm Labor Contractor Registration Act of 1963 [former 7 U.S.C. § 2041 et seq.
(See Revisor's note)]; or substantially all the members of such crew operate or maintain tractors, mechanized harvesting or
crop dusting equipment or any other mechanized equipment, which is provided by such crew leader; and 2. If such individual
is not an employee of such other person within the meaning of subdivision (9)(A) of this section.
(IV) For the purpose of this subparagraph in the case of an individual who is furnished by a crew leader to perform services
in agricultural labor for any other person and who is not treated as an employee of such crew leader under item (III) of this
subparagraph: 1. Such other person and not the crew leader shall be treated as the employer of such individual; and 2. Such
other person shall be treated as having paid cash remuneration to such individual in an amount equal to the amount of cash
remuneration paid to such individual by the crew leader (either on the person's own behalf or on behalf of such other person)
for the service in agricultural labor performed for such other person.
(V) For the purposes of this subparagraph, the term "crew leader" means an individual who: 1. Furnishes individuals to perform
services in agricultural labor for any other person; 2. Pays (either on the person's own behalf or on behalf of such other
person) the individuals so furnished by the crew leader for the service in agricultural labor performed by them; and 3. Has
not entered into a written agreement with such other person under which such individual is designated as an employee of such
other person.
(B) Domestic service in a private home performed prior to January 1, 1978. After December 31, 1977, the term "employment"
shall include domestic service in a private home, local college club or local chapter of a college fraternity or sorority
performed for a person who paid cash remuneration of $1,000 or more after December 31, 1977, in the current calendar year
or the preceding calendar year to individuals employed in such domestic service in any calendar quarter.
(C) Service performed by an individual in the employ of the individual's child or spouse and service performed by a child
under the age of 18 in the employ of the child's father or mother.
(D) Service performed after December 31, 1971, in the employ of this State, or of any political subdivision or of any instrumentality
of this State or its political subdivision except as provided in subdivision (10)(B) of this section.
(E) Service performed after December 31, 1971, in the employ of a corporation, community chest, fund or foundation organized
and operated exclusively for religious, charitable, scientific, testing for public safety, literary or educational purposes
or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any
private shareholder or individual, no substantial part of the activities of which is carrying on propaganda or otherwise attempting
to influence legislation and which does not participate in, or intervene in (including the publishing or distributing of statements)
any political campaign on behalf of any candidate for public office, except as provided in subdivision (10)(C) of this section.
(F) Service with respect to which unemployment compensation is payable under an unemployment compensation system established
by an act of Congress. The Department shall enter into agreements with the proper agencies under such act of Congress, which
agreements shall become effective 10 days after publication thereof in the manner provided in § 3122 of this title for general
rules and shall provide reciprocal treatment to individuals who have, after acquiring potential rights to benefits under this
chapter, acquired rights to unemployment compensation under such act of Congress, or who have, after acquiring potential rights
to unemployment compensation under such act of Congress, acquired rights to benefits under this chapter.
(G) Service performed by an officer of any building and loan association, fraternal order, society, labor union, political
club or political organization service club, alumni association or any corporation, association, society or club organized
and operated exclusively for social or civic purposes. The exemptions mentioned in this paragraph shall apply only when the
service performed by the officer is a part-time service and only when the remuneration of the officer performing the part-time
service does not exceed the sum of $75 in any calendar quarter in any calendar year.
(H) Service performed by an individual for an employer as an insurance agent or real estate agent, or as an insurance solicitor
or real estate solicitor, if all such service performed by such individual for such employer is performed for remuneration
solely by way of commissions.
(I) Service covered by an arrangement between the Department and the agency charged with the administration of any other state
or federal unemployment compensation law pursuant to which all services performed by an individual for an employing unit during
the period covered by such employing unit's duly approved election are deemed to be performed entirely within such agency's
state.
(J) Service performed after December 31, 1971, in the employ of a school, college or university, if such service is performed
by a student who is enrolled and is regularly attending classes at such school, college or university.
(K) Service performed after December 31, 1971, by an individual who is enrolled at a nonprofit or public educational institution
which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance
at the place where its educational activities are carried on as a student in a full-time program, taken for credit at such
institution, which combines academic instruction with work experience, if such service is an integral part of such program
and such institution has so certified to the employer, except that this subparagraph shall not apply to service performed
in a program established for or on behalf of an employer or a group of employers.
(L) Service performed after December 31, 1971, in the employ of a hospital if such service is performed by a patient of the
hospital, as defined in subdivision (14) of this section.
(M) Service performed after June 30, 1972, in the employ of this State or any of its political subdivisions by an elected
official, an official appointed by the Governor or an official compensated on a fee basis.
(N) Service performed as a direct seller as defined in § 3508 of the Internal Revenue Code of 1954 [26 U.S.C. § 3508], as
amended.
(12) "Employment office" means a free public employment office or branch thereof operated by this State or as a part of a
state-controlled system of public employment offices or by a federal agency charged with the administration of an unemployment
compensation program or free public employment offices.
(13) "Fund" means the Unemployment Compensation Fund established by this title to which all assessments required and from
which all benefits provided under this chapter shall be paid.
(14) "Hospital" means an institution which has been licensed, certified or approved by the Department of Health and Social
Services as a hospital.
(15)(A) "Institution of higher education," for the purposes of this section, means an educational institution which:
(i) Admits as regular students only individuals having a certificate of graduation from a high school or the recognized equivalent
of such a certificate;
(ii) Is legally authorized in this State to provide a program of education beyond high school;
(iii) Provides an educational program for which it awards a bachelor's or higher degree, or provides a program which is acceptable
for full credit toward such a degree, a program of postgraduate or postdoctoral studies or a program of training to prepare
students for gainful employment in a recognized occupation; and
(iv) Is a public or other nonprofit institution.
(v) Notwithstanding any of the foregoing provisions of this subdivision, all colleges and universities in this State are institutions
of higher education for purposes of this section.
(B) "Educational institution" (including an institution of higher education) is:
(i) One in which participants, trainees or students are offered an organized course of study or training designed to transfer
to them knowledge, skills, information, doctrines, attitudes or abilities from, by or under the guidance of an instructor
or teacher; and
(ii) Approved, licensed or issued a permit to operate as a school by the State Department of Education or other governmental
agency that is authorized within the State to approve, license or issue a permit for the operations of a school; and
(iii) The courses of study or training which it offers may be academic, technical, trade or preparation for gainful employment
in a recognized occupation.
(16) "States" includes, in addition to the states of the United States of America, the District of Columbia, the Commonwealth
of Puerto Rico and Virgin Islands.
(17) "Unemployment" exists and an individual is "unemployed" in any week during which the individual performs no services
and with respect to which no wages are payable to the individual, or in any week of less than full-time work if the wages
payable to the individual with respect to such week are less than the individual's weekly benefit amount plus whichever is
the greater of $10 or 50% of the individual's weekly benefit amount. The Department shall prescribe regulations applicable
to unemployed individuals making such distinctions in the procedures as to total unemployment, part-total unemployment, partial
unemployment of individuals attached to their regular jobs and other forms of short-time work as the Department deems necessary.
(18) "Wages" means all remuneration for personal services, including commissions, bonuses, dismissal payments, holiday pay,
back pay awards and the cash value of all remuneration in any medium other than cash.
Gratuities customarily received by an individual in the course of the individual's work from persons other than the individual's
employing unit shall be treated as wages received from the individual's employing unit.
The reasonable cash value of remuneration in any medium other than cash and the reasonable amount of gratuities shall be estimated
and determined in accordance with rules prescribed by the Department.
(19) "Wages" does not include:
(A) For the purpose of § 3345 and § 3348 of this title:
(i) After December 31, 1982, that part of the remuneration which, after remuneration equal to $7,200 with respect to employment
during any calendar year, is paid to an individual by an employer or the employer's predecessor during such calendar year;
or
(ii) After December 31, 1983, that part of the remuneration which, after remuneration equal to $8,000 (or such greater amount
as may be specified as the taxable wage base in the Federal Unemployment Tax Act) with respect to employment during any calendar
year, is paid to an individual by an employer or the employer's predecessor during such calendar year; or
(iii) After December 31, 1985, that part of the remuneration which, after remuneration equal to $8,250 (or such greater amount
as may be specified as the taxable wage base in the Federal Unemployment Tax Act) with respect to employment during any calendar
year, is paid to an individual by an employer or the employer's predecessor during such calendar year; or
(iv) After December 31, 1986, that part of the remuneration which, after remuneration equal to $8,500 (or such greater amount
as may be specified as the taxable wage base in the Federal Unemployment Tax Act) with respect to employment during any calendar
year, is paid to an individual by an employer or the employer's predecessor during such calendar year; or
(v) After December 31, 2007, that part of the remuneration which, after remuneration equal to $10,500 (or such greater amount
as may be specified as the taxable wage base in the Federal Unemployment Tax Act [26 U.S.C. § 3301 et seq.]) with respect
to employment during any calendar year, is paid to an individual by an employer or the employer's predecessor during such
calendar year.
(vi) For the purpose of this paragraph, the term "employment" shall include service constituting employment under any unemployment
compensation law of another state.
(B) The amount of any payment with respect to services performed after December 31, 1940, to or on behalf of an individual
in its employ under a plan or system established by an employing unit which makes provision for individuals in its employ
generally or for a class or classes of such individuals (including any amount paid by an employing unit for insurance or annuities
or into a fund to provide for any such payment) on account of:
(i) Retirement; or
(ii) Sickness or accident disability; or
(iii) Medical and hospitalization expenses in connection with sickness or accident disability; or
(iv) Death, provided the individual in its employ:
(I) Has not the option to receive instead of provision for such death benefit any part of such payment or if such death benefit
is insured any part of the premiums (or contributions to premiums) paid by the individual's employing unit, and
(II) Has not the right, under the provisions of the plan or system or policy of insurance providing for such death benefit,
to assign such benefit or to receive a cash consideration in lieu of such benefit either upon withdrawal from the plan or
system providing for such benefit or upon termination of such plan or system or policy of insurance or of the individual's
services with such employing unit.
(C) The payment by an employing unit (without deduction from the remuneration of the individual in its employ) of the tax
imposed upon an individual in its employ under § 3101 [26 U.S.C. § 3101] of the Federal Internal Revenue Code with respect
to services performed after December 31, 1954.
(D) Vacation pay paid during or incident to any period of unemployment.
(E) Any attendance bonus paid during or incident to any period of unemployment.
(20) "Week" means calendar week, ending at midnight Saturday, but all work performed and wages earned during a working shift
which starts before midnight Saturday shall be included in the week in which such shift begins. For purposes of partial claims
and mass layoff claims, the Department may authorize the employer's payroll week.
(21) "Work" means service, including service in interstate commerce, performed for wages or under any contract of hire, written
or oral, express or implied.
(22) "Statewide average weekly wage" shall be the amount computed annually as of July 1 by dividing the aggregate amount of
wages irrespective of the limitation on the amount of wages subject to assessment under subdivision (19) of this section for
services in employment reported by employers as paid during the first 4 of the last 6 completed calendar quarters immediately
preceding the effective date of the computation, by a figure representing 52 times the 12-month average of the number of employees
in the pay period containing the twelfth day of each month during the same 4 calendar quarters as reported by such employers.
The statewide average weekly wage shall be effective on the 1st of July of each year computed.
41 Del. Laws, c. 258, § 2; 42 Del. Laws, c. 196, §§ 1-5; 43 Del. Laws, c. 278; 43 Del. Laws, c. 279; 43 Del. Laws, c. 280, §§ 1, 2; 43 Del. Laws, c. 281, §§ 1, 2; 43 Del. Laws, c. 282, § 1; 44 Del. Laws, c. 207, § 1; 45 Del. Laws, c. 267, §§ 1-4; 46 Del. Laws, c. 162, §§ 1, 2; 19 Del. C. 1953, § 3302; 49 Del. Laws, c. 220, § 19; 50 Del. Laws, c. 115, §§ 1-3; 50 Del. Laws, c. 117, § 1; 50 Del. Laws, c. 559, § 1; 53 Del. Laws, c. 79, § 1; 53 Del. Laws, c. 158; 53 Del. Laws, c. 232, § 1; 57 Del. Laws, c. 521, § 1; 57 Del. Laws, c. 669, §§ 5A, 5B; 58 Del. Laws, c. 143, § 5; 58 Del. Laws, c. 359; 58 Del. Laws, c. 511, § 39; 58 Del. Laws, c. 522, §§ 6-14; 58 Del. Laws, c. 530, §§ 1, 2; 58 Del. Laws, c. 573, §§ 1, 2, 4; 59 Del. Laws, c. 337, § 1; 60 Del. Laws, c. 138, § 1; 61 Del. Laws, c. 186, §§ 1-14(b); 61 Del. Laws, c. 452, § 1; 63 Del. Laws, c. 76, §§ 1, 2, 8; 63 Del. Laws, c. 427, §§ 2-4; 64 Del. Laws,c. 91, §§ 3-6; 64 Del. Laws, c. 114, § 1; 65 Del. Laws, c. 44, § 1; 65 Del. Laws, c. 45, § 1; 65 Del. Laws, c. 367, § 1; 66 Del. Laws, c. 73, § 1; 66 Del. Laws, c. 380, § 1; 66 Del. Laws, c. 390, § 1; 70 Del. Laws, c. 43, §§ 2, 3; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 229, § 1; 71 Del. Laws, c. 147, § 1; 73 Del. Laws, c. 65, § 20; 73 Del. Laws, c. 271, § 1; 76 Del. Laws, c. 46, §§ 1-3; 77 Del. Laws, c. 71, § 1.;
§ 3303. Fraternal benefit societies subject to assessment payments.
Section 6140 of Title 18 [Repealed] shall not relieve the fraternal benefit societies mentioned in such § 6140 of Title 18
[Repealed] from the payment of the assessments required by this chapter.
41 Del. Laws, c. 258, § 2; 42 Del. Laws, c. 196, § 6; 19 Del. C. 1953, § 3303; 53 Del. Laws, c. 79, § 1.;
§ 3304. Day of filing; computation of time.
When any notice, report or other document is required to be filed under this chapter and the same is forwarded by mail to
the Department, the day of mailing shall be deemed to be the day of filing.
When the day, or the last day, for doing any act required to be done falls on Saturday, Sunday or a holiday, the act may be
done on the first ensuing day that is not a Saturday, Sunday or holiday.
41 Del. Laws, c. 258, § 2; 48 Del. Laws, c. 179, § 1; 19 Del. C. 1953, § 3304; 57 Del. Laws, c. 669, § 5B.;
§ 3305. Termination of chapter upon amendment, repeal or declaration of unconstitutionality of federal Social Security Act;
disposition of moneys.
This chapter is enacted as part of a national plan of social security in conformity to the federal Social Security Act [42
U.S.C. § 301 et seq.].
In the event that the tax levied under § 3301 of the Federal Unemployment Tax Act [26 U.S.C. § 3301], against which assessments
under this chapter may be credited, is amended or repealed by Congress or declared unconstitutional by the Supreme Court of
the United States, with the result that no portion of the assessments required under this chapter may be credited against
such federal tax, the provisions of this chapter, except those of this section and except as otherwise provided in this chapter,
shall become inoperative. Thereupon, all assets standing to the credit of this State in the Unemployment Trust Fund in the
United States Treasury shall be promptly requisitioned by the Department of Labor, which is granted continuing authority for
the purposes of this section, and, together with all assets in the Unemployment Compensation Fund, shall be refunded to persons
required to pay assessments under this chapter in accordance with the regulations prescribed by the Department.
Any interest or earnings of the Fund and any fines or penalties collected pursuant to this chapter shall be available to the
Department to pay for the costs of making refunds pursuant to this section.
In the case of the Unemployment Compensation Administration Fund, any moneys therein received from the Secretary of Labor
of the United States shall thereafter be dealt with by the Treasurer of this State in accordance with the regulations of the
Secretary of Labor of the United States and the conditions of the grant to this State by the Secretary of Labor of the United
States. Any assets in the Unemployment Compensation Administration Fund which have been received by this State from the United
States employment service or which have been appropriated by the General Assembly for the State Employment Service shall remain
available to the State Employment Service, which Service shall continue in existence as if this chapter had not been enacted.
The same action shall be taken with respect to assets in the Unemployment Compensation Fund, the Unemployment Trust Fund and
the Unemployment Compensation Administration Fund in the event that this chapter is repealed by the General Assembly or finally
declared invalid by the Supreme Court of the State or by the Supreme Court of the United States.
41 Del. Laws, c. 258, § 22; 19 Del. C. 1953, § 3305; 53 Del. Laws, c. 79, § 4; 53 Del. Laws, c. 232, § 1; 57 Del. Laws, c. 669, §§ 5B-5D; 58 Del. Laws, c. 522, § 15; 63 Del. Laws, c. 427, § 5.;
§ 3306. Reservation of power to amend or repeal chapter.
The General Assembly reserves the right to amend or repeal all or any part of this chapter at any time, and there shall be
no vested private right of any kind against such amendment or repeal. All the rights, privileges or immunities conferred by
this chapter or by acts done pursuant thereto shall exist subject to the power of the General Assembly to amend or repeal
this chapter at any time.
41 Del. Laws, c. 258, § 20; 19 Del. C. 1953, § 3306.;
As a guide to the interpretation and application of this chapter, the public policy of this State is declared to be as follows:
economic insecurity due to unemployment is a serious menace to the health, morals and welfare of the people of this State.
Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the General
Assembly to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed
worker and the worker's family. The achievement of social security requires protection against this greatest hazard of our
economic life. This can be accomplished by encouraging employers to provide more stable employment and by the systematic accumulation
of funds during periods of employment from which benefits may be paid for periods of unemployment, thus maintaining purchasing
power and limiting the serious social consequences of poor relief assistance. The General Assembly therefore declares that
in its considered judgment the public good and the general welfare of the citizens of this State require the enactment of
this measure, under the police power of the State, for the compulsory setting aside of an unemployment reserve to be used
for the benefit of persons unemployed through no fault of their own.
41 Del. Laws, c. 258; 19 Del. C. 1953, § 3301; 70 Del. Laws, c. 186, § 1.;
§ 3302. Definitions.
As used in this chapter, unless the context clearly requires otherwise, the following terms shall have the meanings designated
in this section:
(1) "Assessments" means the money payments to the State Unemployment Compensation Fund required by this chapter.
(2) "Base period" means the first 4 of the last 5 completed calendar quarters immediately preceding the first day of an individual's
benefit year. However, if the claimant has earned insufficient wages in the first 4 of the last 5 completed calendar quarters
to become eligible for benefits, then such claimant's "base period" shall be the 4 most recent completed calendar quarters
immediately preceding the first day of the claimant's benefit year.
(3) "Benefit year" with respect to any individual means the 1-year period beginning with the first day of the first week with
respect to which the individual first files a valid claim for benefits, and thereafter the 1-year period beginning with the
first day of the first week with respect to which the individual next files a valid claim for benefits after the termination
of the worker's last preceding benefit year. Provided that, when the last day of such 1-year period falls within a week with
respect to which an individual has met the eligibility requirements of this chapter, the ending date of the benefit year may
be extended for a period not to exceed 6 days, and provided further that, for the purpose of filing any subsequent claim for
benefits, the extension of the benefit year as provided in this subdivision shall not change the benefit year ending date
as established prior to such extension.
As used in this subdivision, a "valid claim" is any claim for benefits made in accordance with § 3317 of this title if the
individual has been paid wages for employment required under § 3315(5) of this title.
(4) "Benefits" means the money payments payable to an individual, as provided in this chapter, with respect to the individual's
unemployment.
(5) "Regular benefits" means benefits payable to an individual under this chapter or under any other state law (including
benefits payable to federal civilian employees and to ex-service persons pursuant to 5 U.S.C. Chapter 85) other than additional
and extended benefits.
(6) "Calendar quarter" means the period of 3 consecutive calendar months ending on March 31, June 30, September 30 or December
31, excluding, however, any calendar quarter or portion thereof which occurs prior to January 1, 1938, or the equivalent thereof
as the Department may by regulation prescribe.
(7) "Department" means the Department of Labor.
(8) "Employer" means:
(A)(i) Any employing unit which after December 31, 1971,
(I) In any calendar quarter in either the current or preceding calendar year paid for service in employment wages of $1,500
or more, or
(II) For some portion of a day in each of 20 different calendar weeks, whether or not such weeks were consecutive, in either
the current or preceding calendar year, had in employment at least 1 individual (irrespective of whether the same individual
was in employment in each such day);
(ii) Any employing unit for which agricultural labor as defined in subdivision (11)(A)(vii) of this section is performed after
December 31, 1977;
(iii) Any employing unit for which domestic service as defined in subdivision (11)(B) of this section is performed after December
31, 1977;
(iv)(I) In determining whether or not an employing unit for which service other than domestic service is also performed is
an employer under subparagraphs (i) and (ii) of this paragraph the wages earned or the employment of an employee performing
domestic service after December 31, 1977, shall not be taken into account;
(II) In determining whether or not an employing unit for which service other than agricultural labor is also performed is
an employer under subparagraphs (i) and (iii) of this paragraph, the wages earned or the employment of an employee performing
service in agricultural labor after December 31, 1977, shall not be taken into account. If an employing unit is determined
an employer of agricultural labor, such employing unit shall be determined an employer for the purposes of subparagraph (i)
of this paragraph;
(B) Any employing unit for which service in employment as defined in subdivision (10)(B)(iii) of this section is performed;
(C) Any employing unit for which service in employment, as defined in subdivision (10)(C) of this section, is performed after
December 31, 1971;
(D) Any employing unit (whether or not an employing unit at the time of acquisition) which acquired the organization, trade
or business, or substantially all of the assets thereof, of another employing unit which at the time of such acquisition was
an employer subject to this chapter, or which acquired a part of the organization, trade or business of another employing
unit which at the time of such acquisition was an employer subject to this chapter;
(E) Any employing unit which acquired the organization, trade or business, or substantially all the assets thereof, of another
employing unit (not an employer subject to this chapter) and which would be an employer under paragraph (A) of this subdivision
if, subsequent to such acquisition, it were treated as a single unit with such other employing unit;
(F) Any employing unit which, together with 1 or more other employing units, is owned or controlled (by legally enforceable
means or otherwise) directly or indirectly by the same interests, or which owns or controls 1 or more other employing units
(by legally enforceable means or otherwise), and which if treated as a single unit with such other employing units or interests
or both would be an employer under paragraph (A) of this subdivision;
(G) Any employing unit not an employer by reason of any other paragraph of this subdivision:
(i) For which, within either the current or preceding calendar year, service is or was performed with respect to which such
employing unit is liable for any federal tax against which credit may be taken for assessments required to be paid into a
state unemployment fund; or
(ii) Which, as a condition for approval of this part for full tax credit against the tax imposed by the Federal Unemployment
Tax Act, is required, pursuant to such Act, to be an "employer" under this part;
(H) Any employing unit which, having become an employer under paragraph (A), (B), (C), (D), (E), (F) or (G) of this subdivision,
has not under §§ 3341-3343 of this title ceased to be an employer subject to this chapter; and
(I) For the effective period of its election pursuant to § 3343 of this title, any employing unit which has elected to become
subject to this chapter.
(J) For purposes of this subsection, an employee leasing company, a professional employment organization (PEO) or any other
similar entity shall not be considered to be the employer of any leased employees. The services performed by leased employees
shall be considered to be services performed for the employer client company of the employee leasing company, professional
employment organization (PEO) or any similar entity and the employer client company shall be considered to be the employer
of its leased employees. An employer client company shall be responsible for reporting the gross wages of its leased employees
to the Division of Unemployment Insurance on Form UC-8A (Quarterly Payroll Report) and for paying any assessments due on the
taxable wages of its leased employees to the Division of Unemployment Insurance as reported on Form UC-8 (Quarterly Tax Report).
The unemployment insurance assessment rate for an employer client company, as determined in accordance with § 3350 of this
title, shall include the unemployment insurance claims experience of the employer client company's leased employees. This
paragraph does not apply to a temporary help firm as defined in § 3327 of this title unless such temporary help firm provides
leased employees to an employer client company. In such cases, the employee leasing segment of the temporary help firm's business
shall be subject to this paragraph. For the purpose of this sibdivision, an "employee leasing company," "professional employment
organization (PEO)" or similar entity shall mean an employing unit established to engage in the business of providing leased
employees to an employer client company. For the purpose of this paragraph, an "employer client company" shall mean a company
who enters into an agreement with an employee leasing company, professional employment organization (PEO) or similar entity
to lease any or all of its regular employees.
For purposes of paragraphs (A) and (C) of this subdivision, employment shall include service which would constitute employment
but for the fact that such service is deemed to be performed entirely within another state pursuant to an election under an
arrangement entered into (in accordance with § 3131 of this title) by the Department and an agency charged with the administration
of any other state or federal unemployment compensation law.
For purposes of paragraphs (A)(i)(II) and (C) of this subdivision, if any week includes both December 31 and January 1, the
days of that week up to January 1 shall be deemed 1 calendar week and the days beginning January 1 another such week.
(9)(A) "Employing unit" means any individual or type of organization, including any partnership, association, trust, estate,
joint stock company, insurance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy,
trustee or successor thereof or the legal representative of a deceased person, which has or subsequent to January 1, 1936,
had in its employ 1 or more individuals performing services for it within this State. Employing unit also means any governmental
entity which has in its employ individuals performing services. All individuals performing services within this State for
any employing unit which maintains 2 or more separate establishments within this State shall be deemed to be employed by a
single employing unit for all other purposes of this chapter.
(B) Whenever any employing unit contracts with or has under it any contractor or subcontractor for any work which is part
of its usual trade, occupation, profession or business, such employing unit shall for all the purposes of this chapter be
deemed to employ each individual in the employ of each such contractor or subcontractor for each day during which such individual
is engaged in performing such work and shall be liable for the employer assessments with respect to wages paid to such individuals
by such contractor or subcontractor, except that any employing unit which becomes liable for and pays assessments with respect
to individuals in the employ of any such contractor or subcontractor may recover the same from such contractor or subcontractor.
Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall
be deemed to be employed by such employing unit for all the purposes of this chapter, whether such individual was hired or
paid directly by such employing unit or by such agent or employee, providing the employing unit had actual or constructive
knowledge of the work, except as provided in subdivision (11)(A)(vii) of this section.
(10) "Employment" means:
(A) Any service performed prior to January 1, 1978, which was employment as defined in this subdivision prior to such date
and, subject to the other provisions of this subdivision, service performed after December 31, 1977, including service in
interstate commerce, by
(i) Any officer of a corporation after December 31, 1995.
(ii) Any individual who, under paragraph (K) of this subdivision, has the status of an employee; or
(iii) Any individual other than an individual who is an employee under paragraph (A)(i) or (A)(ii) of this subdivision who
performs services for remuneration for any person:
(I) As an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery
products, beverages (other than milk) or laundry or dry cleaning services, for the driver's principal; or
(II) As a traveling or city salesperson, other than as an agent-driver or commission-driver, engaged upon a full-time basis
in the solicitation on behalf of, and the transmission to, the person's principal (except for sideline sales activities on
behalf of some other person) of orders from wholesalers, retailers, contractors or operators of hotels, restaurants or other
similar establishments for merchandise for resale or supplies for use in their business operations;
(III) As a homeworker performing work, according to specifications furnished by the person for whom the services are performed,
on materials or goods furnished by such person which are required to be returned to such person or a person designated by
such person;
Provided, that for purposes of paragraph (A)(iii) of this subdivision, the term "employment" shall include services described
in (I), (II) and (III) of this subparagraph, performed after December 31, 1977, only if:
1. The contract of service contemplates that substantially all of the services are to be performed personally by such individual;
2. The individual does not have a substantial investment in facilities used in connection with the performance of the services
(other than in facilities for transportation); and
3. The services are not in the nature of a single transaction that is not part of a continuing relationship with the person
for whom the services are performed.
(B)(i) Service performed after December 31, 1971, by an individual in the employ of this State or any of its instrumentalities
(or in the employ of this State and 1 or more other states or their instrumentalities) for a hospital or institution of higher
education located in this State, provided that such service is excluded from "employment" as defined in the Federal Unemployment
Tax Act [26 U.S.C. § 3301 et seq.]; or
(ii) Service performed after June 30, 1972, and before January 1, 1978, by an individual in the employ of this State or any
of its instrumentalities, provided that such service is classified by the State Personnel Commission. As used in this subdivision,
a "classified employee" is a person holding a career job based on a merit system under a specific pay plan in accordance with
merit system screening, regulation and law. Coverage is restricted to services of classified employees not employed on a seasonal
or temporary basis.
(iii) Service performed after December 31, 1977, in the employ of this State or any of its instrumentalities or any political
subdivision thereof or any of its instrumentalities or any instrumentality of more than 1 of the foregoing or any instrumentality
of any of the foregoing and 1 or more other states or political subdivisions, provided that such service is excluded from
"employment" as defined in the Federal Unemployment Tax Act by § 3306(c)(7) [26 U.S.C. § 3306(c)(7)] of that act and is not
excluded from "employment" under paragraph (D)(iii) of this subdivision.
(C) Service performed after December 31, 1971, by an individual in the employ of a religious, charitable, educational or other
organization but only if the following conditions are met:
(i) The service is excluded from "employment" as defined in the Federal Unemployment Tax Act solely by reason of § 3306(c)(8)
of that act [26 U.S.C. § 3306(c)(8)]; and
(ii) The organization had 4 or more individuals in employment for some portion of a day in each of 20 different weeks, whether
or not such weeks were consecutive, within either the current or preceding calendar year, regardless of whether they were
employed at the same moment of time.
(D) For the purposes of paragraphs (B) and (C) of this subdivision, the term "employment" does not apply to service performed:
(i) In the employ of
(I) A church or convention or association of churches; or
(II) An organization which is operated primarily for religious purposes and which is operated, supervised, controlled or principally
supported by a church or convention or association of churches; or
(ii) By a duly ordained, commissioned or licensed minister of a church in the exercise of a ministry or by a member of a religious
order in the exercise of duties required by such order; or
(iii) Prior to January 1, 1978, in the employ of a school which is not an institution of higher education; after December
31, 1977, in the employ of a governmental entity referred to in paragraph (B)(iii) of this subdivision if such service is
performed by an individual in the exercise of duties:
(I) As an elected official;
(II) As a member of a legislative body, or a member of the judiciary, of a state or political subdivision;
(III) As a member of the State National Guard or Air National Guard;
(IV) As an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency;
(V) In a position which, under or pursuant to the laws of this State, is designated as: 1. A major nontenured policymaking
or advisory position, or 2. A policymaking or advisory position the performance of duties of which ordinarily does not require
more than 8 hours per week; or
(iv) In a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity
is impaired by age or physical or mental deficiency or injury or of providing remunerative work for individuals who because
of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market, such service performed
by an individual receiving such rehabilitation or remunerative work; or
(v) As part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal
agency or an agency of a state or political subdivision thereof by an individual receiving such work relief or work training;
or
(vi) Prior to January 1, 1978, for a hospital in a state prison or other state correctional institution and after December
31, 1977, by an inmate of a custodial or penal institution.
(E) The term "employment" shall include the service of an individual who is a citizen of the United States, performed outside
the United States after December 31, 1971 (except in Canada, and in the case of the Virgin Islands after December 31, 1971,
and prior to January 1 of the year following the year in which the United States Secretary of Labor approves the unemployed
compensation law of the Virgin Islands under § 3304(a) [26 U.S.C. § 3304(a)] of the Internal Revenue Code of 1954), in the
employ of an American employer (other than service which is deemed "employment" under paragraph (H) or (I) of this subdivision
or the parallel provisions of another state's law), if:
(i) The employer's principal place of business in the United States is located in this State; or
(ii) The employer has no place of business in the United States, but
(I) The employer is an individual who is a resident of this State; or
(II) The employer is a corporation which is organized under the laws of this State; or
(III) The employer is a partnership or a trust and the number of partners or trustees who are residents of this State is greater
than the number who are residents of any 1 other state; or
(iii) None of the criteria of subparagraphs (i) and (ii) of this paragraph is met but the employer has elected coverage in
this State or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits based
on such service under the law of this State.
(iv) An "American employer" for purposes of this paragraph means a person who is:
(I) An individual who is a resident of the United States; or
(II) A partnership if 2/3 or more of the partners are residents of the United States; or
(III) A trust, if all of the trustees are residents of the United States; or
(IV) A corporation organized under the laws of the United States or of any state.
(v) For purposes of this paragraph, the term "United States" includes the states, the District of Columbia and the Commonwealth
of Puerto Rico.
(F) Notwithstanding paragraph (H) of this subdivision, all service performed after December 31, 1971, by an officer or member
of a crew of an American vessel on or in connection with such vessel if the operating office from which the operation of such
vessel operating on navigable waters within, or within and without, the United States is ordinarily and regularly supervised,
managed, directed and controlled is within this State.
(G) Notwithstanding any other provisions of this subdivision, except as provided in subparagraph (i) of paragraph (A) of this
subdivision, service with respect to which a tax is required to be paid under any federal law imposing a tax against which
credit may be taken for assessments required to be paid into a state unemployment fund or which as a condition for full tax
credit against the tax imposed by the Federal Unemployment Tax Act is required to be covered under this chapter.
(H) The term "employment" shall include an individual's entire service, performed within, or both within and without, this
State if the service is localized in this State. Service shall be deemed to be localized within this State if:
(i) The service is performed entirely within this State; or
(ii) The service is performed both within and without this State but the service performed without this State is incidental
to the individual's service within the State, for example, is temporary or transitory in nature or consists of isolated transactions.
(I) The term "employment" shall include an individual's entire service, performed within, or both within or without, this
State if the service is not localized in any state but some of the service is performed in this State and
(i) The individual's base of operation is in this State; or
(ii) If there is no base of operations, then the place from which such service is directed or controlled is in this State;
or
(iii) The individual's base of operations or place from which such service is directed or controlled is not in any state in
which some part of the service is performed, but the individual's residence is in this State.
(J) Service covered by an election pursuant to § 3343 of this title shall be deemed to be employment during the effective
period of the election.
(K) Notwithstanding any other provisions of this chapter and irrespective of whether the common-law relationship of employer
and employee exists, services performed by an individual for wages, unless and until it is shown to the satisfaction of the
Department that:
(i) Such individual has been and will continue to be free from control and direction in connection with the performance of
such service, both under the individual's contract for the performance of services and in fact; and
(ii) Such service is performed either outside the usual course of the business for which the service is performed or is performed
outside of all the places of business of the enterprise for which the service is performed; and
(iii) Such individual is customarily engaged in an independently established trade, occupation, profession or business of
the same nature as that involved in the service performed.
(11) "Employment" does not include:
(A) Service performed by an individual in agricultural labor, except as provided in subparagraph (vii) of this paragraph.
For purposes of this paragraph, the term "agricultural labor" means any service performed prior to January 1, 1972, which
was agricultural labor as defined in this paragraph prior to such date, and remunerated service performed after December 31,
1971:
(i) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting
any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management
of livestock, bees, poultry and fur-bearing animals and wildlife;
(ii) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation,
improvement or maintenance of such farm and its tools and equipment or in salvaging timber or clearing land of brush and other
debris left by a hurricane, if the major part of such service is performed on a farm;
(iii) In connection with the production or harvesting of any commodity defined as an agricultural commodity in § 15(g) of
the Agricultural Marketing Act, as amended [12 U.S.C. § 1141j] or in connection with the ginning of cotton or in connection
with the operation or maintenance of ditches, canals, reservoirs or waterways, not owned or operated for profit, used exclusively
for supplying and storing water for farming purposes;
(iv)(I) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading,
storing or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any
agricultural or horticultural commodity, but only if such operator produced more than one half of the commodity with respect
to which such service is performed;
(II) In the employ of a group of operators of farms (or a cooperative organization of which such operators are members) in
the performance of service described in subparagraph (iv)(I) of this paragraph but only if such operators produced more than
one half of the commodity with respect to which such service is performed;
(III) Subparagraphs (iv)(I) and (iv)(II) of this paragraph shall not be deemed to be applicable with respect to service performed
in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity
after its delivery to a terminal market for distribution for consumption; or
(v) On a farm operated for profit if such service is not in the course of the employer's trade or business.
(vi) As used in paragraph (A) of this subdivision the term "farm" includes stock, dairy, poultry, fruit, fur-bearing animals
and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising
of agricultural or horticultural commodities and orchards.
(vii) The term "employment" shall include service performed after December 31, 1977, by an individual in agricultural labor
when:
(I) Such service is performed for a person who: 1. During any calendar quarter in either the current or the preceding calendar
year paid remuneration in cash of $20,000 or more to individuals employed in agricultural labor (not taking into account service
in agricultural labor performed before January 1, 1980, by an alien referred to in item (II) of this subparagraph, or 2. For
some portion of a day in each of 20 different calendar weeks, whether or not such days were consecutive, in either the current
or the preceding calendar year, employed in agricultural labor (not taking into account service in agricultural labor performed
before January 1, 1980, by an alien referred to in item (II) of this subparagraph) 10 or more individuals, regardless of whether
they were employed at the same moment of time.
(II) Such service is not performed in agricultural labor if performed prior to January 1, 1980, by an individual who is an
alien admitted to the United States to perform service in agricultural labor pursuant to §§ 214(c) and 101(a)(15)(H) [8 U.S.C.
§ 1184(c) and 8 U.S.C. § 1101(a)(15)(H)] of the Immigration and Nationality Act.
(III) For purposes of this paragraph, any individual who is a member of a crew furnished by a crew leader to perform service
in agricultural labor for any other person shall be treated as an employee of such crew leader: 1. If such crew leader holds
a valid certificate of registration under the Farm Labor Contractor Registration Act of 1963 [former 7 U.S.C. § 2041 et seq.
(See Revisor's note)]; or substantially all the members of such crew operate or maintain tractors, mechanized harvesting or
crop dusting equipment or any other mechanized equipment, which is provided by such crew leader; and 2. If such individual
is not an employee of such other person within the meaning of subdivision (9)(A) of this section.
(IV) For the purpose of this subparagraph in the case of an individual who is furnished by a crew leader to perform services
in agricultural labor for any other person and who is not treated as an employee of such crew leader under item (III) of this
subparagraph: 1. Such other person and not the crew leader shall be treated as the employer of such individual; and 2. Such
other person shall be treated as having paid cash remuneration to such individual in an amount equal to the amount of cash
remuneration paid to such individual by the crew leader (either on the person's own behalf or on behalf of such other person)
for the service in agricultural labor performed for such other person.
(V) For the purposes of this subparagraph, the term "crew leader" means an individual who: 1. Furnishes individuals to perform
services in agricultural labor for any other person; 2. Pays (either on the person's own behalf or on behalf of such other
person) the individuals so furnished by the crew leader for the service in agricultural labor performed by them; and 3. Has
not entered into a written agreement with such other person under which such individual is designated as an employee of such
other person.
(B) Domestic service in a private home performed prior to January 1, 1978. After December 31, 1977, the term "employment"
shall include domestic service in a private home, local college club or local chapter of a college fraternity or sorority
performed for a person who paid cash remuneration of $1,000 or more after December 31, 1977, in the current calendar year
or the preceding calendar year to individuals employed in such domestic service in any calendar quarter.
(C) Service performed by an individual in the employ of the individual's child or spouse and service performed by a child
under the age of 18 in the employ of the child's father or mother.
(D) Service performed after December 31, 1971, in the employ of this State, or of any political subdivision or of any instrumentality
of this State or its political subdivision except as provided in subdivision (10)(B) of this section.
(E) Service performed after December 31, 1971, in the employ of a corporation, community chest, fund or foundation organized
and operated exclusively for religious, charitable, scientific, testing for public safety, literary or educational purposes
or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any
private shareholder or individual, no substantial part of the activities of which is carrying on propaganda or otherwise attempting
to influence legislation and which does not participate in, or intervene in (including the publishing or distributing of statements)
any political campaign on behalf of any candidate for public office, except as provided in subdivision (10)(C) of this section.
(F) Service with respect to which unemployment compensation is payable under an unemployment compensation system established
by an act of Congress. The Department shall enter into agreements with the proper agencies under such act of Congress, which
agreements shall become effective 10 days after publication thereof in the manner provided in § 3122 of this title for general
rules and shall provide reciprocal treatment to individuals who have, after acquiring potential rights to benefits under this
chapter, acquired rights to unemployment compensation under such act of Congress, or who have, after acquiring potential rights
to unemployment compensation under such act of Congress, acquired rights to benefits under this chapter.
(G) Service performed by an officer of any building and loan association, fraternal order, society, labor union, political
club or political organization service club, alumni association or any corporation, association, society or club organized
and operated exclusively for social or civic purposes. The exemptions mentioned in this paragraph shall apply only when the
service performed by the officer is a part-time service and only when the remuneration of the officer performing the part-time
service does not exceed the sum of $75 in any calendar quarter in any calendar year.
(H) Service performed by an individual for an employer as an insurance agent or real estate agent, or as an insurance solicitor
or real estate solicitor, if all such service performed by such individual for such employer is performed for remuneration
solely by way of commissions.
(I) Service covered by an arrangement between the Department and the agency charged with the administration of any other state
or federal unemployment compensation law pursuant to which all services performed by an individual for an employing unit during
the period covered by such employing unit's duly approved election are deemed to be performed entirely within such agency's
state.
(J) Service performed after December 31, 1971, in the employ of a school, college or university, if such service is performed
by a student who is enrolled and is regularly attending classes at such school, college or university.
(K) Service performed after December 31, 1971, by an individual who is enrolled at a nonprofit or public educational institution
which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance
at the place where its educational activities are carried on as a student in a full-time program, taken for credit at such
institution, which combines academic instruction with work experience, if such service is an integral part of such program
and such institution has so certified to the employer, except that this subparagraph shall not apply to service performed
in a program established for or on behalf of an employer or a group of employers.
(L) Service performed after December 31, 1971, in the employ of a hospital if such service is performed by a patient of the
hospital, as defined in subdivision (14) of this section.
(M) Service performed after June 30, 1972, in the employ of this State or any of its political subdivisions by an elected
official, an official appointed by the Governor or an official compensated on a fee basis.
(N) Service performed as a direct seller as defined in § 3508 of the Internal Revenue Code of 1954 [26 U.S.C. § 3508], as
amended.
(12) "Employment office" means a free public employment office or branch thereof operated by this State or as a part of a
state-controlled system of public employment offices or by a federal agency charged with the administration of an unemployment
compensation program or free public employment offices.
(13) "Fund" means the Unemployment Compensation Fund established by this title to which all assessments required and from
which all benefits provided under this chapter shall be paid.
(14) "Hospital" means an institution which has been licensed, certified or approved by the Department of Health and Social
Services as a hospital.
(15)(A) "Institution of higher education," for the purposes of this section, means an educational institution which:
(i) Admits as regular students only individuals having a certificate of graduation from a high school or the recognized equivalent
of such a certificate;
(ii) Is legally authorized in this State to provide a program of education beyond high school;
(iii) Provides an educational program for which it awards a bachelor's or higher degree, or provides a program which is acceptable
for full credit toward such a degree, a program of postgraduate or postdoctoral studies or a program of training to prepare
students for gainful employment in a recognized occupation; and
(iv) Is a public or other nonprofit institution.
(v) Notwithstanding any of the foregoing provisions of this subdivision, all colleges and universities in this State are institutions
of higher education for purposes of this section.
(B) "Educational institution" (including an institution of higher education) is:
(i) One in which participants, trainees or students are offered an organized course of study or training designed to transfer
to them knowledge, skills, information, doctrines, attitudes or abilities from, by or under the guidance of an instructor
or teacher; and
(ii) Approved, licensed or issued a permit to operate as a school by the State Department of Education or other governmental
agency that is authorized within the State to approve, license or issue a permit for the operations of a school; and
(iii) The courses of study or training which it offers may be academic, technical, trade or preparation for gainful employment
in a recognized occupation.
(16) "States" includes, in addition to the states of the United States of America, the District of Columbia, the Commonwealth
of Puerto Rico and Virgin Islands.
(17) "Unemployment" exists and an individual is "unemployed" in any week during which the individual performs no services
and with respect to which no wages are payable to the individual, or in any week of less than full-time work if the wages
payable to the individual with respect to such week are less than the individual's weekly benefit amount plus whichever is
the greater of $10 or 50% of the individual's weekly benefit amount. The Department shall prescribe regulations applicable
to unemployed individuals making such distinctions in the procedures as to total unemployment, part-total unemployment, partial
unemployment of individuals attached to their regular jobs and other forms of short-time work as the Department deems necessary.
(18) "Wages" means all remuneration for personal services, including commissions, bonuses, dismissal payments, holiday pay,
back pay awards and the cash value of all remuneration in any medium other than cash.
Gratuities customarily received by an individual in the course of the individual's work from persons other than the individual's
employing unit shall be treated as wages received from the individual's employing unit.
The reasonable cash value of remuneration in any medium other than cash and the reasonable amount of gratuities shall be estimated
and determined in accordance with rules prescribed by the Department.
(19) "Wages" does not include:
(A) For the purpose of § 3345 and § 3348 of this title:
(i) After December 31, 1982, that part of the remuneration which, after remuneration equal to $7,200 with respect to employment
during any calendar year, is paid to an individual by an employer or the employer's predecessor during such calendar year;
or
(ii) After December 31, 1983, that part of the remuneration which, after remuneration equal to $8,000 (or such greater amount
as may be specified as the taxable wage base in the Federal Unemployment Tax Act) with respect to employment during any calendar
year, is paid to an individual by an employer or the employer's predecessor during such calendar year; or
(iii) After December 31, 1985, that part of the remuneration which, after remuneration equal to $8,250 (or such greater amount
as may be specified as the taxable wage base in the Federal Unemployment Tax Act) with respect to employment during any calendar
year, is paid to an individual by an employer or the employer's predecessor during such calendar year; or
(iv) After December 31, 1986, that part of the remuneration which, after remuneration equal to $8,500 (or such greater amount
as may be specified as the taxable wage base in the Federal Unemployment Tax Act) with respect to employment during any calendar
year, is paid to an individual by an employer or the employer's predecessor during such calendar year; or
(v) After December 31, 2007, that part of the remuneration which, after remuneration equal to $10,500 (or such greater amount
as may be specified as the taxable wage base in the Federal Unemployment Tax Act [26 U.S.C. § 3301 et seq.]) with respect
to employment during any calendar year, is paid to an individual by an employer or the employer's predecessor during such
calendar year.
(vi) For the purpose of this paragraph, the term "employment" shall include service constituting employment under any unemployment
compensation law of another state.
(B) The amount of any payment with respect to services performed after December 31, 1940, to or on behalf of an individual
in its employ under a plan or system established by an employing unit which makes provision for individuals in its employ
generally or for a class or classes of such individuals (including any amount paid by an employing unit for insurance or annuities
or into a fund to provide for any such payment) on account of:
(i) Retirement; or
(ii) Sickness or accident disability; or
(iii) Medical and hospitalization expenses in connection with sickness or accident disability; or
(iv) Death, provided the individual in its employ:
(I) Has not the option to receive instead of provision for such death benefit any part of such payment or if such death benefit
is insured any part of the premiums (or contributions to premiums) paid by the individual's employing unit, and
(II) Has not the right, under the provisions of the plan or system or policy of insurance providing for such death benefit,
to assign such benefit or to receive a cash consideration in lieu of such benefit either upon withdrawal from the plan or
system providing for such benefit or upon termination of such plan or system or policy of insurance or of the individual's
services with such employing unit.
(C) The payment by an employing unit (without deduction from the remuneration of the individual in its employ) of the tax
imposed upon an individual in its employ under § 3101 [26 U.S.C. § 3101] of the Federal Internal Revenue Code with respect
to services performed after December 31, 1954.
(D) Vacation pay paid during or incident to any period of unemployment.
(E) Any attendance bonus paid during or incident to any period of unemployment.
(20) "Week" means calendar week, ending at midnight Saturday, but all work performed and wages earned during a working shift
which starts before midnight Saturday shall be included in the week in which such shift begins. For purposes of partial claims
and mass layoff claims, the Department may authorize the employer's payroll week.
(21) "Work" means service, including service in interstate commerce, performed for wages or under any contract of hire, written
or oral, express or implied.
(22) "Statewide average weekly wage" shall be the amount computed annually as of July 1 by dividing the aggregate amount of
wages irrespective of the limitation on the amount of wages subject to assessment under subdivision (19) of this section for
services in employment reported by employers as paid during the first 4 of the last 6 completed calendar quarters immediately
preceding the effective date of the computation, by a figure representing 52 times the 12-month average of the number of employees
in the pay period containing the twelfth day of each month during the same 4 calendar quarters as reported by such employers.
The statewide average weekly wage shall be effective on the 1st of July of each year computed.
41 Del. Laws, c. 258, § 2; 42 Del. Laws, c. 196, §§ 1-5; 43 Del. Laws, c. 278; 43 Del. Laws, c. 279; 43 Del. Laws, c. 280, §§ 1, 2; 43 Del. Laws, c. 281, §§ 1, 2; 43 Del. Laws, c. 282, § 1; 44 Del. Laws, c. 207, § 1; 45 Del. Laws, c. 267, §§ 1-4; 46 Del. Laws, c. 162, §§ 1, 2; 19 Del. C. 1953, § 3302; 49 Del. Laws, c. 220, § 19; 50 Del. Laws, c. 115, §§ 1-3; 50 Del. Laws, c. 117, § 1; 50 Del. Laws, c. 559, § 1; 53 Del. Laws, c. 79, § 1; 53 Del. Laws, c. 158; 53 Del. Laws, c. 232, § 1; 57 Del. Laws, c. 521, § 1; 57 Del. Laws, c. 669, §§ 5A, 5B; 58 Del. Laws, c. 143, § 5; 58 Del. Laws, c. 359; 58 Del. Laws, c. 511, § 39; 58 Del. Laws, c. 522, §§ 6-14; 58 Del. Laws, c. 530, §§ 1, 2; 58 Del. Laws, c. 573, §§ 1, 2, 4; 59 Del. Laws, c. 337, § 1; 60 Del. Laws, c. 138, § 1; 61 Del. Laws, c. 186, §§ 1-14(b); 61 Del. Laws, c. 452, § 1; 63 Del. Laws, c. 76, §§ 1, 2, 8; 63 Del. Laws, c. 427, §§ 2-4; 64 Del. Laws,c. 91, §§ 3-6; 64 Del. Laws, c. 114, § 1; 65 Del. Laws, c. 44, § 1; 65 Del. Laws, c. 45, § 1; 65 Del. Laws, c. 367, § 1; 66 Del. Laws, c. 73, § 1; 66 Del. Laws, c. 380, § 1; 66 Del. Laws, c. 390, § 1; 70 Del. Laws, c. 43, §§ 2, 3; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 229, § 1; 71 Del. Laws, c. 147, § 1; 73 Del. Laws, c. 65, § 20; 73 Del. Laws, c. 271, § 1; 76 Del. Laws, c. 46, §§ 1-3; 77 Del. Laws, c. 71, § 1.;
§ 3303. Fraternal benefit societies subject to assessment payments.
Section 6140 of Title 18 [Repealed] shall not relieve the fraternal benefit societies mentioned in such § 6140 of Title 18
[Repealed] from the payment of the assessments required by this chapter.
41 Del. Laws, c. 258, § 2; 42 Del. Laws, c. 196, § 6; 19 Del. C. 1953, § 3303; 53 Del. Laws, c. 79, § 1.;
§ 3304. Day of filing; computation of time.
When any notice, report or other document is required to be filed under this chapter and the same is forwarded by mail to
the Department, the day of mailing shall be deemed to be the day of filing.
When the day, or the last day, for doing any act required to be done falls on Saturday, Sunday or a holiday, the act may be
done on the first ensuing day that is not a Saturday, Sunday or holiday.
41 Del. Laws, c. 258, § 2; 48 Del. Laws, c. 179, § 1; 19 Del. C. 1953, § 3304; 57 Del. Laws, c. 669, § 5B.;
§ 3305. Termination of chapter upon amendment, repeal or declaration of unconstitutionality of federal Social Security Act;
disposition of moneys.
This chapter is enacted as part of a national plan of social security in conformity to the federal Social Security Act [42
U.S.C. § 301 et seq.].
In the event that the tax levied under § 3301 of the Federal Unemployment Tax Act [26 U.S.C. § 3301], against which assessments
under this chapter may be credited, is amended or repealed by Congress or declared unconstitutional by the Supreme Court of
the United States, with the result that no portion of the assessments required under this chapter may be credited against
such federal tax, the provisions of this chapter, except those of this section and except as otherwise provided in this chapter,
shall become inoperative. Thereupon, all assets standing to the credit of this State in the Unemployment Trust Fund in the
United States Treasury shall be promptly requisitioned by the Department of Labor, which is granted continuing authority for
the purposes of this section, and, together with all assets in the Unemployment Compensation Fund, shall be refunded to persons
required to pay assessments under this chapter in accordance with the regulations prescribed by the Department.
Any interest or earnings of the Fund and any fines or penalties collected pursuant to this chapter shall be available to the
Department to pay for the costs of making refunds pursuant to this section.
In the case of the Unemployment Compensation Administration Fund, any moneys therein received from the Secretary of Labor
of the United States shall thereafter be dealt with by the Treasurer of this State in accordance with the regulations of the
Secretary of Labor of the United States and the conditions of the grant to this State by the Secretary of Labor of the United
States. Any assets in the Unemployment Compensation Administration Fund which have been received by this State from the United
States employment service or which have been appropriated by the General Assembly for the State Employment Service shall remain
available to the State Employment Service, which Service shall continue in existence as if this chapter had not been enacted.
The same action shall be taken with respect to assets in the Unemployment Compensation Fund, the Unemployment Trust Fund and
the Unemployment Compensation Administration Fund in the event that this chapter is repealed by the General Assembly or finally
declared invalid by the Supreme Court of the State or by the Supreme Court of the United States.
41 Del. Laws, c. 258, § 22; 19 Del. C. 1953, § 3305; 53 Del. Laws, c. 79, § 4; 53 Del. Laws, c. 232, § 1; 57 Del. Laws, c. 669, §§ 5B-5D; 58 Del. Laws, c. 522, § 15; 63 Del. Laws, c. 427, § 5.;
§ 3306. Reservation of power to amend or repeal chapter.
The General Assembly reserves the right to amend or repeal all or any part of this chapter at any time, and there shall be
no vested private right of any kind against such amendment or repeal. All the rights, privileges or immunities conferred by
this chapter or by acts done pursuant thereto shall exist subject to the power of the General Assembly to amend or repeal
this chapter at any time.
41 Del. Laws, c. 258, § 20; 19 Del. C. 1953, § 3306.;