State Codes and Statutes

State Codes and Statutes

Statutes > Nebraska > Chapter48 > 48-602

48-602. Terms, defined.For purposes of the Employment Security Law, unless the contextotherwise requires:(1) Base period means the first four ofthe last five completed calendar quarters immediately preceding the firstday of an individual's benefit year,except that for benefit years beginning on or after July 1, 2011, if the individualis not monetarily eligible for unemployment benefits as determined pursuantto subdivision (5) of section 48-627 based upon wages paid during the firstfour of the five most recently completed calendar quarters, the departmentshall make a redetermination of monetary eligibility based upon an alternativebase period which consists of the last four completed calendar quarters immediatelypreceding the first day of the claimant's benefit year;(2) Benefits means the money payments payable to an individualwith respect to his or her unemployment;(3) Benefit year, with respect to any individual, means theone-year period beginning with the first day of the first week with respectto which the individual first files a valid claim for benefits, and thereafterthe one-year period beginning with the first day of the first week with respectto which the individual next files a valid claim for benefits after the terminationof his or her last preceding benefit year. Any claim for benefits made inaccordance with section 48-629 shall be deemed to be a valid claim for thepurpose of this subdivision if the individual has been paid the wages forinsured work required under section 48-627. For the purposes of this subdivisiona week with respect to which an individual files a valid claim shall be deemedto be in, within, or during that benefit year which includes the greater partof such week;(4) Calendar quarter means the period of three consecutivecalendar months ending on March 31, June 30, September 30, or December 31,or the equivalent thereof as the Commissioner of Labor may by rule and regulationprescribe;(5) Client means any individual, partnership, limited liabilitycompany, corporation, or other legally recognized entity that contracts witha professional employer organization to obtain professional employer servicesrelating to worksite employees through a professional employer agreement;(6) Combined tax means the employer liability consisting ofcontributions and the state unemployment insurance tax;(7) Combined tax rate means the rate which is applied to wagesto determine the combined taxes due;(8) Commissioner means the Commissioner of Labor;(9) Contribution rate means the percentage of the combinedtax rate used to determine the contribution portion of the combined tax;(10) Contributions means that portion of the combined taxbased upon the contribution rate portion of the combined tax rate which isdeposited in the state Unemployment Compensation Fund as required by sections 48-648 and 48-649;(11) Department means the Department of Labor;(12) Employment office means a free public employment officeor branch thereof, operated by this state or maintained as a part of a state-controlledsystem of public employment offices, including public employment offices operatedby an agency of a foreign government;(13) Fund means the Unemployment Compensation Fund establishedby section 48-617 to which all contributions and payments in lieu of contributionsrequired and from which all benefits provided shall be paid;(14) Hospital means an institution which has been licensed,certified, or approved by the Department of Health and Human Services as ahospital;(15) Institution of higher education means an institutionwhich: (a) Admits as regular students only individuals having a certificateof graduation from a high school or the recognized equivalent of such a certificate;(b) is legally authorized in this state to provide a program of educationbeyond high school; (c) provides an educational program for which it awardsa bachelor's degree or higher or provides a program which is acceptable forfull credit toward such a degree, a program of postgraduate or postdoctoralstudies, or a program of training to prepare students for gainful employmentin a recognized occupation; and (d) is a public or other nonprofit institution;notwithstanding any of the foregoing provisions of this subdivision, all collegesand universities in this state are institutions of higher education for purposesof this section;(16) Insured work means employment for employers;(17) Leave of absence means any absence from work: (a) Mutuallyand voluntarily agreed to by the employer and the employee; (b) mutually andvoluntarily agreed to between the employer and the employee's bargaining agent;or (c) to which the employee is entitled to as a matter of state or federallaw;(18) Paid vacation leave means a period of time while employedor following separation from employment in which the individual renders noservices to the employer but is entitled to receive vacation pay equal toor exceeding his or her base weekly wage;(19) Payments in lieu of contributions means the money paymentsto the Unemployment Compensation Fund required by sections 48-649, 48-652, 48-660.01, and 48-661;(20) Professional employer agreement means a written professionalemployer services contract whereby:(a) A professional employer organization agrees to providepayroll services, employee benefit administration, or personnel services fora majority of the employees providing services to the client at a client worksite;(b) The agreement is intended to be ongoing rather than temporaryin nature; and(c) Employer responsibilities for worksite employees, includingthose of hiring, firing, and disciplining, are shared between the professionalemployer organization and the client by contract. The term professional employeragreement shall not include a contract between a parent corporation, company,or other entity and a wholly owned subsidiary;(21) Professional employer organization means any individual,partnership, limited liability company, corporation, or other legally recognizedentity that enters into a professional employer agreement with a client orclients for a majority of a client's workforce at a client worksite. The termprofessional employer organization does not include an insurer as definedin section 44-103 or a temporary help firm;(22) State includes, in addition to the states of the UnitedStates of America, any dependency of the United States, the Commonwealth ofPuerto Rico, the Virgin Islands, and the District of Columbia;(23) State unemployment insurance tax means that portion ofthe combined tax which is based upon the state unemployment insurance taxrate portion of the combined tax rate and which is deposited in the StateUnemployment Insurance Trust Fund as required by sections 48-648 and 48-649;(24) State unemployment insurance tax rate means the percentageof the combined tax rate used to determine the state unemployment insurancetax portion of the combined tax;(25) Temporary employee means an employee of a temporary helpfirm assigned to work for the clients of such temporary help firm;(26) Temporary help firm means a firm that hires its own employeesand assigns them to clients to support or supplement the client's work forcein work situations such as employee absences, temporary skill shortages, seasonalworkloads, and special assignments and projects;(27) Unemployed means an individual during any week in whichthe individual performs no service and with respect to which no wages arepayable to the individual or any week of less than full-time work if the wagespayable with respect to such week are less than the individual's weekly benefitamount, but does not include any individual on a leave of absence or on paidvacation leave. When an agreement between the employer and a bargaining unitrepresentative does not allocate vacation pay allowance or pay in lieu ofvacation to a specified period of time during a period of temporary layoffor plant shutdown, the payment by the employer or his or her designated representativewill be deemed to be wages as defined in this section in the week or weeksthe vacation is actually taken;(28) Unemployment Trust Fund means the trust fund in the Treasuryof the United States of America established under section 904 of the federalSocial Security Act, 42 U.S.C. 1104, as such section existed on March 2, 2001,which receives credit from the state Unemployment Compensation Fund;(29) Wages, except with respect to services performed in employmentas provided in subdivisions (4)(c) and (d) of section 48-604, means all remunerationfor personal services, including commissions and bonuses, remuneration forpersonal services paid under a contract of hire, and the cash value of allremunerations in any medium other than cash. The reasonable cash value ofremuneration in any medium other than cash shall be estimated and determinedin accordance with rules and regulations prescribed by the commissioner. AfterDecember 31, 1985, wages includes tips which are received while performingservices which constitute employment and which are included in a written statementfurnished to the employer pursuant to section 6053(a) of the Internal RevenueCode as defined in section 49-801.01.With respect to services performed in employment in agriculturallabor as is provided in subdivision (4)(c) of section 48-604, wages meanscash remuneration and the cash value of commodities not intended for personalconsumption by the worker and his or her immediate family for such services.With respect to services performed in employment in domestic service as isprovided in subdivision (4)(d) of section 48-604, wages means cash remunerationfor such services.The term wages does not include:(a) The amount of any payment, including any amount paid byan employer for insurance or annuities or into a fund to provide for suchpayment, made to, or on behalf of, an individual in employment or any of hisor her dependents under a plan or system established by an employer whichmakes provision for such individuals generally or for a class or classes ofsuch individuals, including any amount paid by an employer for insurance orannuities or into a fund to provide for any such payment, on account of (i)sickness or accident disability, except, in the case of payments made to anemployee or any of his or her dependents, this subdivision (i) shall excludefrom wages only payments which are received under a workers' compensationlaw, (ii) medical and hospitalization expenses in connection with sicknessor accident disability, or (iii) death;(b) The payment by an employer, without deduction from theremuneration of the employee, of the tax imposed upon an employee under section3101 of the Internal Revenue Code as defined in section 49-801.01;(c) Any payment on account of sickness or accident disability,or medical or hospitalization expenses in connection with sickness or accidentdisability, made by an employer to, or on behalf of, an individual after theexpiration of six calendar months following the last calendar month in whichsuch individual worked for such employer;(d) Any payment made to, or on behalf of, an individual orhis or her beneficiary (i) from or to a trust described in section 401(a)of the Internal Revenue Code as defined in section 49-801.01 which is exemptfrom tax under section 501(a) of the Internal Revenue Code as defined in section 49-801.01 at the time of such payment unless such payment is made to an employeeof the trust as remuneration for services rendered as such employee and notas a beneficiary of the trust or (ii) under or to an annuity plan which, atthe time of such payment, meets the requirements of section 401 of the InternalRevenue Code as defined in section 49-801.01;(e) Any payment made to, or on behalf of, an employee or hisor her beneficiary (i) under a simplified employee pension as defined by thecommissioner, (ii) under or to an annuity contract as defined by the commissioner,other than a payment for the purchase of such contract which is made by reasonof a salary reduction agreement, whether evidenced by a written instrumentor otherwise, (iii) under or to an exempt governmental deferred compensationplan as defined by the commissioner, (iv) to supplement pension benefits undera plan or trust, as defined by the commissioner, to take into account someportion or all of the increase in the cost of living since retirement, butonly if such supplemental payments are under a plan which is treated as awelfare plan, or (v) under a cafeteria benefits plan;(f) Remuneration paid in any medium other than cash to anindividual for service not in the course of the employer's trade or business;(g) Benefits paid under a supplemental unemployment benefitplan which satisfies the eight points set forth in Internal Revenue ServiceRevenue Ruling 56-249 as the ruling existed on March 2, 2001, and is in compliancewith the standards set forth in Internal Revenue Service Revenue Rulings 58-128and 60-330 as the rulings existed on March 2, 2001; and(h) Remuneration for service performed in the employ of anystate in the exercise of his or her duties as a member of the Army NationalGuard or Air National Guard or in the employ of the United States of Americaas a member of any military reserve unit;(30) Week means such period of seven consecutive days as thecommissioner may by rule and regulation prescribe;(31) Week of unemployment with respect to any individual meansany week during which he or she performs less than full-time work and thewages payable to him or her with respect to such week are less than his orher weekly benefit amount;(32) Wholly owned subsidiary means a corporation, company,or other entity which has eighty percent or more of its outstanding votingstock or membership owned or controlled, directly or indirectly, by the parententity; and(33)(a) Until January 1, 2012, worksite employeemeans a person receiving wages or benefits from a professional employer organizationpursuant to the terms of a professional employer agreement for work performedat a client's worksite.(b) On and after January1, 2012, worksite employee has the same meaning as the term covered employeein section 48-2702. SourceLaws 1937, c. 108, § 2, p. 370; Laws 1939, c. 56, § 1, p. 229; Laws 1940, Spec. Sess., c. 2, § 1, p. 54; Laws 1941, c. 94, § 1, p. 373; C.S.Supp.,1941, § 48-702; Laws 1943, c. 111, §§ 1, 2, p. 390; R.S.1943, § 48-602; Laws 1947, c. 175, § 1, p. 563; Laws 1949, c. 163, § 2, p. 417; Laws 1951, c. 156, § 1, p. 626; Laws 1953, c. 167, § 2, p. 520; Laws 1961, c. 235, § 3, p. 695; Laws 1961, c. 238, § 1, p. 701; Laws 1971, LB 651, § 1; Laws 1972, LB 1392, § 1; Laws 1977, LB 509, § 1; Laws 1979, LB 581, § 1; Laws 1980, LB 800, § 1; Laws 1983, LB 248, § 1; Laws 1985, LB 339, § 2; Laws 1986, LB 950, § 1; Laws 1988, LB 1033, § 1; Laws 1992, LB 879, § 1; Laws 1993, LB 121, § 289; Laws 1994, LB 286, § 1; Laws 1994, LB 1337, § 2; Laws 1995, LB 77, § 1; Laws 1995, LB 574, § 51; Laws 1996, LB 1044, § 274; Laws 1999, LB 168, § 1; Laws 1999, LB 608, § 1; Laws 2001, LB 192, § 3; Laws 2002, LB 921, § 1; Laws 2005, LB 484, § 3; Laws 2005, LB 739, § 2; Laws 2007, LB265, § 4; Laws 2007, LB296, § 216; Laws 2010, LB579, § 20; Laws 2010, LB1020, § 2.Note: Changes made by LB1020 became operative July 1, 2011.AnnotationsBased upon the plain and ordinary meaning of the first definition contained in subsection (27) of this section, two elements must be satisfied to demonstrate unemployment: First, the individual must not perform any services for the relevant time period; and second, no wages may be payable with respect to that time period. Wadkins v. Lecuona, 274 Neb. 352, 740 N.W.2d 34 (2007).In determining whether wages are payable with respect to a time period, within the meaning of subsection (27) of this section, the test is not in what week the remuneration is received but in what week it is earned or to which it may reasonably be considered to apply. Generally speaking, wages are tied to the week of work and not to the week in which they are paid. Wadkins v. Lecuona, 274 Neb. 352, 740 N.W.2d 34 (2007).Vacation pay, within the meaning of subsection (18) of this section, is generally regarded, not as a gratuity or gift, but as additional wages for services performed. It is not in the nature of compensation for the calendar days it covers — it is more like a contracted-for bonus for a whole year's work. A "vacation" is also understood to be a respite from active duty, during which activity or work is suspended, purposed for rest, relaxation, and personal pursuits. Wadkins v. Lecuona, 274 Neb. 352, 740 N.W.2d 34 (2007).Under former law, wages may include noncash benefits under certain circumstances. In-kind benefits received in return for services provided may constitute wages for purposes of determining eligibility for unemployment compensation benefits. Lecuona v. McCord, 270 Neb. 213, 699 N.W.2d 403 (2005).As a requisite matter, for an entity to be denominated an employee leasing company under subsection (11) of this section, it must be in the business of leasing employees to another entity. American Employers Group Inc., v. Department of Labor, 260 Neb. 405, 617 N.W.2d 808 (2000).Under the former law, pursuant to subsection (24) of this section, employees who agree to take their earned vacation at a specific period of time for the employer's convenience under the expectation that their employment will continue after that period are not unemployed for the purpose of receiving unemployment insurance benefits. Vlasic Foods International v. Lecuona, 260 Neb. 397, 618 N.W.2d 403 (2000).One performing services under a contract but not receiving wages, as defined by subsection (16) of this section, performs services under a contract of hire unless one is an independent contractor, as defined by the common law. Omaha World-Herald v. Dernier, 253 Neb. 215, 570 N.W.2d 508 (1997).A professional symphony musician employed under a seasonal contract rather than an annual contract was entitled to unemployment benefits for the time he was unemployed during the symphony's "off season". Hanlon v. Boden, 209 Neb. 169, 306 N.W.2d 858 (1981).