44-703. Definitions.
44-703
44-703. Definitions.As used in this act, unless the context clearly requires otherwise:
(a) (1) "Annual payroll" means the total amount of wages paid or payable byan employer during the calendar year.
(2) "Average annual payroll" means the average of the annual payrolls ofany employer for the last three calendar years immediately preceding thecomputation date as hereinafter defined if the employer has beencontinuously subject to contributions during those three calendar years andhas paid some wages for employment during each of such years. Indetermining contribution rates for the calendar year, if an employer hasnot been continuously subject to contribution for the three calendar yearsimmediately preceding the computation date but has paid wages subject tocontributions during only the two calendar years immediately preceding thecomputation date, such employer's "average annual payroll" shall be theaverage of the payrolls for those two calendar years.
(3) "Total wages" means the total amount of wages paid or payable byan employer during the calendar year, including that part of remunerationin excess of the limitation prescribed as provided in subsection(o)(1) of this section.
(b) "Base period" means the first four of the last five completedcalendar quarters immediately preceding the first day of an individual'sbenefit year, except that the base period in respect to combined wageclaims means the base period as defined in the law of the paying state.
(1) (A) If an individual lacks sufficient base period wages in orderto establish a benefit year in the matter set forth above and satisfies therequirements of subsection (g) of K.S.A. 44-705 and subsection (hh) of K.S.A.44-703, and amendments thereto, the claimant shall have an alternative baseperiod substituted for the current base period so as not to preventestablishment of a valid claim. For the purposes of this subsection,"alternative base period" means the last four completed quarters immediatelypreceding the date the qualifying injury occurred. In the event the wages inthe alternative base period have been used on a prior claim, then they shall beexcluded from the new alternative base period.
(B) If an individual lacks sufficient base period wages in order toestablish a benefit year in the manner set forth above the claimant shall havean alternative base period substituted for the current base period. For thepurposes of this subsection, "alternative base period" means eligibility shallbe determined using a base period that consists of the four most recentlycompleted calendar quarters preceding the start of the benefit year.
(2) For the purposes of this chapter, the term "base period" includes thealternative base period.
(c) (1) "Benefits" means the money payments payable to an individual,as provided in this act, with respect to such individual's unemployment.
(2) "Regular benefits" means benefits payable to an individual underthis act or under any other state law, including benefits payable tofederal civilian employees and to ex-servicemen pursuant to 5 U.S.C.chapter 85, other than extended benefits.
(d) "Benefit year" with respect to any individual, means the periodbeginning with the first day of the first week for which such individualfiles a valid claim for benefits, and such benefit year shall continuefor one full year. In the case of a combined wage claim, the benefityear shall be the benefit year of the paying state. Following thetermination of a benefit year, a subsequent benefit year shall commenceon the first day of the first week with respect to which an individualnext files a claim for benefits. When such filing occurs with respect toa week which overlaps the preceding benefit year, the subsequent benefityear shall commence on the first day immediately following theexpiration date of the preceding benefit year. Any claim for benefitsmade in accordance with subsection (a) of K.S.A. 44-709, and amendmentsthereto,shall be deemed to be a "valid claim" for the purposes of thissubsection if the individual has been paid wages for insured work asrequired under subsection (e) of K.S.A. 44-705 and amendmentsthereto. Whenever a week of unemployment overlaps two benefit years,such week shall, for the purpose of granting waiting-period credit orbenefit payment with respect thereto, be deemed to be a week ofunemployment within that benefit year in which the greater part of suchweek occurs.
(e) "Commissioner" or "secretary" means the secretary of labor.
(f) (1) "Contributions" means the money payments to the stateemployment security fund which are required to be made by employers onaccount of employment under K.S.A. 44-710, and amendmentsthereto, and voluntary payments made by employers pursuant to suchstatute.
(2) "Payments in lieu of contributions" means the money payments tothe state employment security fund from employers which are required tomake or which elect to make such payments under subsection (e) of K.S.A.44-710 and amendments thereto.
(g) "Employing unit" means any individual or type of organization,including any partnership, association, limited liability company, agencyor department of thestate of Kansas and political subdivisions thereof, trust, estate,joint-stock company, insurance company or corporation, whether domesticor foreign including nonprofit corporations, or the receiver, trustee inbankruptcy, trustee or successor thereof, or the legal representativesof a deceased person, which has in its employ one or more individualsperforming services for it within this state. All individuals performingservices within this state for any employing unit which maintains two ormore separate establishments within this state shall be deemed tobe employed by a single employing unit for all the purposes of this act.Each individual employed to perform or to assist in performing the workof any agent or employee of an employing unit shall be deemed to beemployed by such employing unit for all the purposes of this act,whether such individual was hired or paid directly by such employingunit or by such agent or employee, provided the employing unit hadactual or constructive knowledge of the employment.
(h) "Employer" means:
(1) (A) Any employing unit for which agricultural labor as definedin subsection (w) of this section is performed and which during anycalendar quarter in either the current or preceding calendar year paidremuneration in cash of $20,000 or more to individuals employed inagricultural labor or for some portion of a day in each of 20 differentcalendar weeks, whether or not such weeks were consecutive, in either thecurrent or the preceding calendar year, employed in agricultural labor 10or more individuals, regardless of whether they were employed at the samemoment of time.
(B) For the purpose of this subsection (h)(1), any individual whois a member of a crew furnished by a crew leader to perform service inagricultural labor for any other person shall be treated as an employeeof such crew leader if:
(i) Such crew leader holds a valid certificate of registration underthe federal migrant and seasonal agricultural workers protection act orsubstantially all the members of such crew operate or maintain tractors,mechanized harvesting or cropdusting equipment or any other mechanizedequipment, which is provided by such crew leader; and
(ii) such individual is not in the employment of such other personwithin the meaning of subsection (i) of this section.
(C) For the purpose of this subsection (h)(1), in the case of anyindividual who is furnished by a crew leader to perform service inagricultural labor for any other person and who is not treated as anemployee of such crew leader:
(i) Such other person and not the crew leader shall be treated asthe employer of such individual; and
(ii) such other person shall be treated as having paid cashremuneration to such individual in an amount equal to the amount of cashremuneration paid to such individual by the crew leader, either on thecrew leader's own behalf or on behalf of such other person, for theservice in agricultural labor performed for such other person.
(D) For the purposes of this subsection (h)(1) "crew leader" meansan individual who:
(i) Furnishes individuals to perform service in agricultural laborfor any other person;
(ii) pays, either on such individual's own behalf or on behalf of suchother person, the individuals so furnished by such individualfor the service in agricultural labor performed by them; and
(iii) has not entered into a written agreement with such otherperson under which such individual is designated as an employee of suchother person.
(2) (A) Any employing unit which for calendar year 2007 andeachcalendar year thereafter: (i) In any calendar quarter ineither the current or preceding calendar year paid for service inemployment wages of $1,500 or more, (ii) for someportion of a day ineach of 20 different calendar weeks, whether or not such weeks wereconsecutive, in either the current or preceding calendar year, had inemployment at least one individual, whether or not the same individual wasin employment in each such day,or (iii) elects tohave an unemployment tax account established at the time of initialregistration in accordancewith subsection (c) of K.S.A. 44-711, and amendments thereto.
(B) Employment of individuals to perform domestic service oragricultural labor and wages paid for such service or labor shall not beconsidered in determining whether an employing unit meets the criteriaof this subsection (h)(2).
(3) Any employing unit for which service is employment as defined insubsection (i)(3)(E) of this section.
(4) (A) Any employing unit, whether or not it is an employing unit undersubsection (g) of this section, which acquires or in any manner succeeds to(i) substantially all of the employing enterprises, organization, trade orbusiness, or (ii) substantially all the assets, of another employing unitwhich at the time of such acquisition was an employer subject to this act;
(B) any employing unit which is controlled substantially, eitherdirectly or indirectly by legally enforceable means or otherwise, by thesame interest or interests, whether or not such interest or interests arean employing unit under subsection (g) of this section, which acquires orin any manner succeeds to a portion of an employer's annual payroll, whichis less than 100% of such employer's annual payroll, and which intends tocontinue the acquired portion as a going business.
(5) Any employing unit which paid cash remuneration of $1,000 or morein any calendar quarter in the current or preceding calendar year toindividuals employed in domestic service as defined in subsection (aa) ofthis section.
(6) Any employing unit which having become an employer under thissubsection (h) has not, under subsection (b) of K.S.A. 44-711, andamendmentsthereto, ceased to be an employer subject to this act.
(7) Any employing unit which has elected to become fully subject tothis act in accordance with subsection (c) of K.S.A. 44-711 andamendments thereto.
(8) Any employing unit not an employer by reason of any otherparagraph of this subsection (h), for which within either the current orpreceding calendar year services in employment are or were performedwith respect to which such employing unit is liable for any federal taxagainst which credit may be taken for contributions required to be paidinto a state unemployment compensation fund; or which, as a conditionfor approval of this act for full tax credit against the tax imposed bythe federal unemployment tax act, is required, pursuant to such act, tobe an "employer" under this act.
(9) Any employing unit described in section 501(c)(3) of thefederal internal revenue code of 1986 which is exempt from income taxunder section 501(a) of the code that had four or more individualsin employment for some portion of a day in each of 20 differentweeks, whether or not such weeks were consecutive, within either thecurrent or preceding calendar year, regardless of whether they wereemployed at the same moment of time.
(i) "Employment" means:
(1) Subject to the other provisions of this subsection, service,including service in interstate commerce, performed by
(A) Any active officer of a corporation; or
(B) any individual who, under the usual common law rules applicablein determining the employer-employee relationship, has the status of anemployee; or
(C) any individual other than an individual who is an employeeunder subsection (i)(1)(A) or subsection (i)(1)(B) above who performs servicesfor remuneration for any person:
(i) As an agent-driver or commission-driver engaged in distributingmeat products, vegetable products, fruit products, bakery products,beverages (other than milk), or laundry or dry-cleaning services, for suchindividual's principal; or
(ii) as a traveling or city salesman, other than as an agent-driveror commission-driver, engaged upon a full-time basis in the solicitationon behalf of, and the transmission to, a principal (except for side-linesales activities on behalf of some other person) of orders fromwholesalers, retailers, contractors, or operators of hotels,restaurants, or other similar establishments for merchandise for resaleor supplies for use in their business operations.
For purposes of subsection (i)(1)(C), the term "employment" shallinclude services described in paragraphs (i) and (ii) above only if:
(a) The contract of service contemplates that substantially all ofthe services are to be performed personally by such individual;
(b) the individual does not have a substantial investment infacilities used in connection with the performance of the services(other than in facilities for transportation); and
(c) the services are not in the nature of a single transaction thatis not part of a continuing relationship with the person for whom theservices are performed.
(2) The term "employment" shall include an individual's entireservice within the United States, even though performed entirely outsidethis state if,
(A) The service is not localized in any state, and
(B) the individual is one of a class of employees who are requiredto travel outside this state in performance of their duties, and
(C) the individual's base of operations is in this state, or ifthere is no base of operations, then the place from which service isdirected or controlled is in this state.
(3) The term "employment" shall also include:
(A) Services performed within this state but not covered by theprovisions of subsection (i)(1) or subsection (i)(2) shall be deemedto be employment subject to this act if contributions are not requiredand paid with respect to such services under an unemploymentcompensation law of any other state or of the federal government.
(B) Services performed entirely without this state, with respect tono part of which contributions are required and paid under anunemployment compensation law of any other state or of the federalgovernment, shall be deemed to be employment subject to this act only ifthe individual performing such services is a resident of this state andthe secretary approved the election of the employing unit for whom suchservices are performed that the entire service of such individual shallbe deemed to be employment subject to this act.
(C) Services covered by an arrangement pursuant to subsection (l) ofK.S.A. 44-714, and amendments thereto, between the secretaryand the agency charged with the administration of any other state orfederal unemployment compensation law, pursuant to which all servicesperformed by an individual for an employing unit are deemed to beperformed entirely within this state, shall be deemed to be employmentif the secretary has approved an election of the employing unit for whomsuch services are performed, pursuant to which the entire service ofsuch individual during the period covered by such election is deemed tobe insured work.
(D) Services performed by an individual for wages or under anycontract of hire shall be deemed to be employment subject to this actunless and until it is shown to the satisfaction of the secretary that:(i) Such individual has been and will continue to be free from controlor direction over the performance of such services, both under theindividual's contract of hire and in fact; and (ii) such service iseither outside the usual course of the business for which such serviceis performed or that such service is performed outside of all the placesof business of the enterprise for which such service is performed.
(E) Service performed by an individual in the employ of this stateor any instrumentality thereof, any political subdivision of this stateor any instrumentality thereof, or in the employ of an Indian tribe, asdefined pursuant to section 3306(u) of the federal unemployment tax act,any instrumentality of more than one ofthe foregoing or any instrumentality which is jointly owned by thisstate or a political subdivision thereof or Indian tribes and one ormore other states orpolitical subdivisions of this or other states, provided that suchservice is excluded from "employment" as defined in the federalunemployment tax act by reason of section 3306(c)(7) of that act andis not excluded from "employment" under subsection (i)(4)(A) of this section.For purposes of this section, the exclusions from employment in subsections(i)(4)(A) and (i)(4)(L) shall also be applicable to services performed in theemploy of an Indian tribe.
(F) Service performed by an individual in the employ of a religious,charitable, educational or other organization which is excluded from theterm "employment" as defined in the federal unemployment tax act solelyby reason of section 3306(c)(8) of that act, and is not excluded fromemployment under paragraphs (I) through (M) of subsection (i)(4).
(G) The term "employment" shall include the service of an individualwho is a citizen of the United States, performed outside the UnitedStates except in Canada, in the employ of an American employer (other thanservice which is deemed "employment" under the provisions of subsection (i)(2)or subsection (i)(3) or the parallel provisions of another state's law), if:
(i) The employer's principal place of business in the United Statesis located in this state; or
(ii) the employer has no place of business in the United States, but
(A) The employer is an individual who is a resident of this state; or
(B) the employer is a corporation which is organized under the lawsof this state; or
(C) the employer is a partnership or a trust and the number of thepartners or trustees who are residents of this state is greater than thenumber who are residents of any other state; or
(iii) none of the criteria of paragraphs (i) and (ii) above of thissubsection (i)(3)(G) are met but the employer has elected coverage in thisstate or, the employer having failed to elect coverage in any state, theindividual has filed a claim for benefits, based on such service, under thelaw of this state.
(H) An "American employer," for purposes of subsection (i)(3)(G),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 theUnited 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 orof any state.
(I) Notwithstanding subsection (i)(2) of this section, all serviceperformed by an officer or member of the crew of an American vessel orAmerican aircraft on or in connection with such vessel or aircraft, ifthe operating office, from which the operations of such vessel oraircraft operating within, or within and without, the United States areordinarily and regularly supervised, managed, directed and controlled iswithin this state.
(J) Notwithstanding any other provisions of this subsection (i),service with respect to which a tax is required to be paid under anyfederal law imposing a tax against which credit may be taken forcontributions required to be paid into a state unemployment compensationfund or which as a condition for full tax credit against the tax imposedby the federal unemployment tax act is required to be covered under this act.
(K) Domestic service in a private home, local college club or localchapter of a college fraternity or sorority performed for a person who paidcash remuneration of $1,000 or more in any calendar quarter in the currentcalendar year or the preceding calendar year to individuals employed insuch domestic service.
(4) The term "employment" shall not include: (A) Service performed inthe employ of an employer specified in subsection (h)(3) of this sectionif 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 thejudiciary, of a state, political subdivision or of anIndian tribe;
(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 ortribal law, isdesignated as a major nontenured policymaking or advisory position or as apolicymaking or advisory position the performance of the duties of whichordinarily does not require more than eight hours per week;
(B) service with respect to which unemployment compensation is payableunder an unemployment compensation system established by an act of congress;
(C) service performed by an individual in the employ of suchindividual's son, daughter or spouse, and service performed by a childunder the age of 21 years in the employ of such individual's father or mother;
(D) service performed in the employ of the United States governmentor an instrumentality of the United States exempt under the constitutionof the United States from the contributions imposed by this act, exceptthat to the extent that the congress of the United States shall permitstates to require any instrumentality of the United States to makepayments into an unemployment fund under a state unemploymentcompensation law, all of the provisions of this act shall be applicableto such instrumentalities, and to services performed for suchinstrumentalities, in the same manner, to the same extent and on thesame terms as to all other employers, employing units, individuals andservices. If this state shall not be certified for any year by thefederal security agency under section 3304(c) of the federal internalrevenue code of 1986, the payments required of such instrumentalities withrespect to such year shall be refunded by the secretary from the fund inthe same manner and within the same period as is provided in subsection(f) of K.S.A. 44-717, and amendments thereto, with respect tocontributions erroneously collected;
(E) service covered by an arrangement between the secretary and theagency charged with the administration of any other state or federalunemployment compensation law pursuant to which all services performedby an individual for an employing unit during the period covered by suchemploying unit's duly approved election, are deemed to be performedentirely within the jurisdiction of such other state or federal agency;
(F) service performed by an individual under the age of 18 in thedelivery or distribution of newspapers or shopping news, not includingdelivery or distribution to any point for subsequent delivery or distribution;
(G) service performed by an individual for an employing unit as aninsurance agent or as an insurance solicitor, if all such serviceperformed by such individual for such employing unit is performed forremuneration solely by way of commission;
(H) service performed in any calendar quarter in the employ of anyorganization exempt from income tax under section 501(a) of the federalinternal revenue code of 1986 (other than an organization described in section401(a) or under section 521 of such code) if the remuneration for suchservice is less than $50. In construing the application of the term"employment," if services performed during 1/2 or more of any pay period byan individual for the person employing such individual constituteemployment, all the services of such individual for such period shall bedeemed to be employment; but if the services performed during more than 1/2of any such pay period by an individual for the person employing suchindividual do not constitute employment, then none of the services of suchindividual for such period shall be deemed to be employment. As used inthis subsection (i)(4)(H) the term "pay period" means a period (of not morethan 31 consecutive days) for which a payment of remuneration is ordinarilymade to the individual by the person employing such individual. Thissubsection (i)(4)(H) shall not be applicable with respect to services withrespect to which unemployment compensation is payable under an unemploymentcompensation system established by an act of congress;
(I) services performed in the employ of a church or convention orassociation of churches, or an organization which is operated primarilyfor religious purposes and which is operated, supervised, controlled, orprincipally supported by a church or convention or association of churches;
(J) service performed by a duly ordained, commissioned, or licensedminister of a church in the exercise of such individual's ministry or by amember of a religious order in the exercise of duties required by such order;
(K) service performed in a facility conducted for the purpose ofcarrying out a program of:
(i) Rehabilitation for individuals whose earning capacity isimpaired by age or physical or mental deficiency or injury, or
(ii) providing remunerative work for individuals who because oftheir impaired physical or mental capacity cannot be readily absorbed inthe competitive labor market, by an individual receiving suchrehabilitation or remunerative work;
(L) service performed as part of an employment work-relief orwork-training program assisted or financed in whole or in part by anyfederal agency or an agency of a state or political subdivision thereof orof an Indian tribe,by an individual receiving such work relief or work training;
(M) service performed by an inmate of a custodial or correctionalinstitution;
(N) service performed, in the employ of a school, college, oruniversity, if such service is performed by a student who is enrolledand is regularly attending classes at such school, college or university;
(O) service performed by an individual who is enrolled at a nonprofit orpublic educational institution which normally maintains a regular facultyand curriculum and normally has a regularly organized body of students inattendance at the place where its educational activities are carried on asa student in a full-time program, taken for credit at such institution,which combines academic instruction with work experience, if such serviceis an integral part of such program, and such institution has so certifiedto the employer, except that this subsection (i)(4)(O) shall not apply toservice performed in a program established for or on behalf of an employeror group of employers;
(P) service performed in the employ of a hospital licensed, certified orapproved by the secretary of health and environment, if such service isperformed by a patient of the hospital;
(Q) services performed as a qualified real estate agent. As used inthis subsection (i)(4)(Q) the term "qualified real estate agent" means anyindividual who is licensed by the Kansas real estate commission as asalesperson under the real estate brokers' and salespersons' license actand for whom:
(i) Substantially all of the remuneration, whether or not paid incash, for the services performed by such individual as a real estatesalesperson is directly related to sales or other output, including theperformance of services, rather than to the number of hours worked; and
(ii) the services performed by the individual are performed pursuant toa written contract between such individual and the person for whom the servicesare performed and such contract provides that the individual will not betreated as an employee with respect to such services for state tax purposes;
(R) services performed for an employer by an extra in connection with anyphase ofmotion picture or television production or television commercials for lessthan 14 days during any calendar year. As used in this subsection, the term"extra" means an individual who pantomimes in the background, addsatmosphere to the set and performs such actions without speaking and"employer" shall not include any employer which is a governmental entity orany employer described in section 501(c)(3) of the federal internal revenuecode of 1986 which is exempt from income taxation under section 501(a)of the code;
(S) services performed by an oil and gas contract pumper. As used inthis subsection (i)(4)(S), "oil and gas contract pumper" means a personperforming pumping and other services on one or more oil or gas leases, oron both oil and gas leases, relating to the operation and maintenance ofsuch oil and gas leases, on a contractual basis for the operators of suchoil and gas leases and "services" shall not include services performed fora governmental entity or any organization described in section 501(c)(3)of the federal internal revenue code of 1986 which is exempt from incometaxation under section 501(a) of the code;
(T) service not in the course of the employer's trade or businessperformed in any calendar quarter by an employee, unless the cashremuneration paid for such service is $200 or more and such service isperformed by an individual who is regularly employed by such employer toperform such service. For purposes of this paragraph, an individual shallbe deemed to be regularly employed by an employer during a calendar quarteronly if:
(i) On each of some 24 days during such quarter such individualperforms for such employer for some portion of the day service not in thecourse of the employer's trade or business, or
(ii) such individual was regularly employed, as determined undersubparagraph (i), by such employer in the performance of such serviceduring the preceding calendar quarter.
Such excluded service shall not include any services performed for anemployer which is a governmental entity or any employer described insection 501(c)(3) of the federal internal revenue code of 1986 which isexempt from income taxation under section 501(a) of the code;
(U) service which is performed by any person who is a member of a limitedliability company and which is performed as a member or manager of that limitedliability company; and
(V) services performed as a qualified direct seller.The term "direct seller" means any person if:
(i) Such person:
(a) is engaged in the trade or business of selling orsoliciting the saleof consumer products to any buyer on a buy-sell basis or a deposit-commissionbasis for resale, by the buyer or any other person, in the home or otherwiserather than in a permanent retail establishment; or
(b) is engaged in the trade or business of selling orsoliciting the saleof consumer products in the home or otherwise than in a permanent retailestablishment;
(ii) substantially all the remuneration whether or not paid in cash for theperformance of the services described in subparagraph (i) is directly relatedto sales or other output including the performance of services rather than tothe number of hours worked;
(iii) the services performed by the person areperformed pursuant to a written contract between such person and the person forwhom the services are performed and such contract provides that the person willnot be treated as an employee for federal and state tax purposes;
(iv) for purposes of this act, a sale or a sale resulting exclusively from asolicitation made by telephone, mail, or other telecommunications method, orother nonpersonal method does not satisfy the requirements of this subsection;
(W) service performed as an election official or election worker, if theamount of remuneration received by the individual during the calendar year forservices as an election official or election worker is less than$1,000;
(X) service performed by agricultural workers who are aliens admitted to theUnited States to perform labor pursuant to section 1101 (a)(15)(H)(ii)(a) ofthe immigration and nationality act; and
(Y) service performed by an owner-operator of a motor vehicle that is leasedor contracted to a licensed motor carrier with the services of a driver and isnot treated under the terms of the lease agreement or contract with thelicensed motor carrier as an employee for purposes of the federal insurancecontribution act, 26 U.S.C. § 3101 et seq., the federal social securityact, 42 U.S.C. § 301 et seq., the federal unemployment taxact, 26 U.S.C. § 3301 et seq., and the federal statutes prescribingincome tax withholding at the source, 26 U.S.C. § 3401 et seq. Employeesor agents of the owner-operator shall not be considered employees of thelicensed motor carrier for purposes of employment security taxation orcompensation. As used in this subsection (Y), the following definitions apply:(i) "Motor vehicle" means any automobile, truck-trailer, semitrailer, tractor,motor bus or any other self-propelled or motor-driven vehicle used upon any ofthe public highways of Kansas for the purpose of transporting persons orproperty; (ii) "licensed motor carrier" means any person, firm, corporation orother business entity that holds a certificate of convenience and necessity ora certificate of public service from thestate corporation commission or is required to register motor carrier equipmentpursuant to 49 U.S.C. § 14504; and (iii) "owner-operator" means aperson, firm, corporation or other business entity that is the owner of asingle motor vehicle that is driven exclusively by the owner under a leaseagreement or contract with a licensed motor carrier.
(j) "Employment office" means any office operated by this state andmaintained by the secretary of labor for thepurpose ofassisting persons to become employed.
(k) "Fund" means the employment security fund established by this act,to which all contributions and reimbursement payments required and fromwhich all benefits provided under this act shall be paid and including allmoney received from the federal government as reimbursements pursuant tosection 204 of the federal-state extended compensation act of 1970, andamendments thereto.
(l) "State" includes, in addition to the states of the United Statesof America, any dependency of the United States, the Commonwealth ofPuerto Rico, the District of Columbia and the Virgin Islands.
(m) "Unemployment." An individual shall be deemed "unemployed" withrespect to any week during which such individual performs no services and withrespect to which no wages are payable to such individual, or with respectto any week of less than full-time work if the wages payable to suchindividual with respect to such week are less than such individual's weeklybenefit amount.
(n) "Employment security administration fund" means the fundestablished by this act, from which administrative expenses under thisact shall be paid.
(o) "Wages" means all compensation for services, including commissions,bonuses, back pay and the cash value of all remuneration,including benefits,paid in any medium other than cash. The reasonable cash value ofremuneration in any medium other than cash, shall be estimated anddetermined in accordance with rules and regulations prescribed by thesecretary. Compensation payable to an individual which has not beenactually received by that individual within 21 days after the end of thepay period in which the compensation was earned shall be considered to havebeen paid on the 21st day after the end of that pay period. EffectiveJanuary 1, 1986, gratuities, including tips received from persons otherthan the employing unit, shall be considered wages when reported in writingto the employer by the employee. Employees must furnish a written statementto the employer, reporting all tips received if they total $20 or more fora calendar month whether the tips are received directly from a person otherthan the employer or are paid over to the employee by the employer. Thisincludes amounts designated as tips by a customer who uses a credit card topay the bill.Notwithstanding the other provisions of this subsection (o), wages paidin back pay awards or settlements shall be allocated to the week or weeksand reported in the manner as specified in the award or agreement, or, inthe absence of such specificity in the award or agreement, such wages shallbe allocated to the week or weeks in which such wages, in the judgment ofthe secretary, would have been paid.The term "wages" shall not include:
(1) That part of the remuneration which has been paid in a calendaryear to an individual by an employer or such employer's predecessor inexcess of $3,000 for all calendar years prior to 1972, $4,200 for thecalendar years 1972 to 1977, inclusive, $6,000 for calendar years 1978 to1982, inclusive, $7,000 for the calendar year 1983, and $8,000 with respectto employment during any calendar year following 1983, except that if thedefinition of the term "wages" as contained in the federal unemployment taxact is amended to include remuneration in excess of $8,000 paid to anindividual by an employer under the federal act during any calendar year,wages shall include remuneration paid in a calendar year to an individualby an employer subject to this act or such employer's predecessor withrespect to employment during any calendar year up to an amount equal to thedollar limitation specified in the federal unemployment tax act. For thepurposes of this subsection (o)(1), the term "employment" shall includeservice constituting employment under any employment security law ofanother state or of the federal government;
(2) the amount of any payment (including any amount paid by anemploying unit for insurance or annuities, or into a fund, to providefor any such payment) made to, or on behalf of, an employee or any of suchemployee's dependents under a plan or system established by an employerwhich makes provisions for employees generally, for a class or classes ofemployees or for such employees or a class or classes of employees andtheir dependents, on account of (A) sickness or accident disability, exceptin the case of any payment made to an employee or such employee'sdependents, this subparagraph shall exclude from the term "wages" onlypayments which are received under a workers compensation law. Any thirdparty which makes a payment included as wages by reason of thissubparagraph (2)(A) shall be treated as the employer with respect to suchwages, or (B) medical and hospitalization expenses in connection withsickness or accident disability, or (C) death;
(3) any payment on account of sickness or accident disability, ormedical or hospitalization expenses in connection with sickness or accidentdisability, made by an employer to, or on behalf of, an employee after theexpiration of six calendar months following the last calendar month inwhich the employee worked for such employer;
(4) any payment made to, or on behalf of, an employee or suchemployee's beneficiary:
(A) From or to a trust described in section 401(a) of the federal internalrevenue code of 1986 which is exempt from tax under section 501(a) ofthe federal internal revenue code of 1986 at the time of such payment unlesssuch payment is made to anemployee of the trust as remuneration for services rendered as suchemployee and not as a beneficiary of the trust;
(B) under or to an annuity plan which, at the time of such payment, is a plandescribed in section 403(a) of the federal internal revenue code of 1986;
(C) under a simplified employee pension as defined in section408(k)(1) of the federal internal revenue code of 1986, other thanany contributiondescribed in section 408(k)(6) of the federal internalrevenue code of 1986;
(D) under or to an annuity contract described in section403(b) of the federal internal revenue code of 1986, other than apayment for the purchaseof such contract which was made by reason of a salary reduction agreementwhether evidenced by a written instrument or otherwise;
(E) under or to an exempt governmental deferred compensationplan as defined in section 3121(v)(3) of the federal internal revenuecode of 1986;
(F) to supplement pension benefits under a plan or trustdescribed in any of the foregoing provisions of this subparagraph to takeinto account some portion or all of the increase in the cost of living, asdetermined by the secretary of labor, since retirement but only if suchsupplemental payments are under a plan which is treated as a welfare planunder section 3(2)(B)(ii) of the federal employee retirement incomesecurity act of 1974; or
(G) under a cafeteria plan within the meaning of section 125 of thefederal internal revenue code of 1986;
(5) the payment by an employing unit (without deduction from theremuneration of the employee) of the tax imposed upon an employee undersection 3101 of the federal internal revenue code of 1986 withrespect to remuneration paidto an employee for domestic service in a private home of the employer orfor agricultural labor;
(6) remuneration paid in any medium other than cash to an employee forservice not in the course of the employer's trade or business;
(7) remuneration paid to or on behalf of an employee if and to theextent that at the time of the payment of such remuneration it isreasonable to believe that a corresponding deduction is allowable undersection 217 of the federal internal revenue code of 1986 relatingto moving expenses;
(8) any payment or series of payments by an employer to an employee orany of such employee's dependents which is paid:
(A) Upon or after thetermination of an employee's employment relationship because of (i) deathor (ii) retirement for disability; and
(B) under a plan established by the employer which makes provisionsfor employees generally, a class or classes of employees or for suchemployees or a class or classes of employees and their dependents, otherthan any such payment or series of payments which would have been paid ifthe employee's employment relationship had not been so terminated;
(9) remuneration for agricultural labor paid in any medium other than cash;
(10) any payment made, or benefit furnished, to or for thebenefit of an employee if at the time of such payment or such furnishing itis reasonable to believe that the employee will be able to exclude suchpayment or benefit from income under section 129 of the federal internalrevenue code of 1986 which relates todependent care assistance programs;
(11) the value of any meals or lodging furnished by or onbehalf of the employer if at the time of such furnishing it is reasonableto believe that the employee will be able to exclude such items from incomeunder section 119 of the federal internal revenue code of 1986;
(12) any payment made by an employer to a survivor or the estate of a formeremployee after the calendar year in which such employee died;
(13) any benefit provided to or on behalf of an employee if at thetime such benefit is provided it is reasonable to believe that the employeewill be able to exclude such benefit from income under section 74(c), 117or 132 of the federal internal revenue code of 1986;
(14) any payment made, or benefit furnished, to or for the benefit of anemployee, if at the time of such payment or such furnishing it is reasonable tobelieve that the employee will be able to exclude such payment or benefit fromincome under section 127 of the federal internal revenue code of 1986 relatingto educational assistance to the employee; or
(15) any payment made to or for the benefit of an employee if at the time ofsuch payment it is reasonable to believe that the employee will be able toexclude such payment from income under section 106(d) of the federal internalrevenue code of 1986 relating to health savings accounts.
Nothing in any paragraph of subsection (o), other than paragraph (1),shall exclude from the term "wages": (1) Any employer contribution under aqualified cash or deferred arrangement, as defined in section 401(k) of thefederal internal revenue code of 1986, to the extent that suchcontribution is not includedin gross income by reason of section 402(a)(8) of the federal internal revenuecode of 1986; or (2) any amount treated as an employer contribution undersection 414(h)(2) of the federal internal revenue code of 1986.
Any amount deferred under a nonqualified deferred compensation plan shallbe taken into account for purposes of this section as of the later of whenthe services are performed or when there is no substantial risk offorfeiture of the rights to such amount. Any amount taken into account aswages by reason of this paragraph, and the income attributable thereto,shall not thereafter be treated as wages for purposes of this section. Forpurposes of this paragraph, the term "nonqualified deferred compensationplan" means any plan or other arrangement for deferral of compensationother than a plan described in subsection (o)(4).
(p) "Week" means such period or periods of seven consecutivecalendar days, as the secretary may by rules and regulations prescribe.
(q) "Calendar quarter" means the period of three consecutive calendar monthsending March 31, June 30, September 30 or December 31, or the equivalentthereof as the secretary may by rules and regulations prescribe.
(r) "Insured work" means employment for employers.
(s) "Approved training" means any vocational training course orcourse in basic education skills, including a job training programauthorized under the federal workforceinvestment act of 1998,approved by the secretary or a personor persons designated by the secretary.
(t) "American vessel" or "American aircraft" means any vessel oraircraft documented or numbered or otherwise registered under the lawsof the United States; and any vessel or aircraft which is neitherdocumented or numbered or otherwise registered under the laws of theUnited States nor documented under the laws of any foreign country, ifits crew performs service solely for one or more citizens or residentsof the United States or corporations organized under the laws of theUnited States or of any state.
(u) "Institution of higher education," for the purposes of thissection, means an educational institution which:
(1) Admits as regular students only individuals having a certificateof graduation from a high school, or the recognized equivalent of such acertificate;
(2) is legally authorized in this state to provide a program ofeducation beyond high school;
(3) provides an educational program for which it awards a bachelor'sor higher degree, or provides a program which is acceptable for fullcredit toward such a degree, a program of postgraduate or postdoctoralstudies, or a program of training to prepare students for gainfulemployment in a recognized occupation; and
(4) is a public or other nonprofit institution.
Notwithstanding any of the foregoing provisions of this subsection (u),all colleges and universities in this state are institutions of highereducation for purposes of this section, except that no college, university,junior college or other postsecondary school or institution which isoperated by the federal government or any agency thereof shall be aninstitution of higher education for purposes of the employment security law.
(v) "Educational institution" means any institution of highereducation, as defined in subsection (u) of this section, or anyinstitution, except private for profit institutions, in whichparticipants, trainees or students are offered anorganized course of study or training designed to transfer to themknowledge, skills, information, doctrines, attitudes or abilities from,by or under the guidance of an instructor or teacher and which isapproved, licensed or issued a permit to operate as a school by thestate department of education or other government agency that isauthorized within the state to approve, license or issue a permit forthe operation of a school or to an Indian tribe in the operation of aneducational institution. The courses of study or training which aneducational institution offers may be academic, technical, trade orpreparation for gainful employment in a recognized occupation.
(w) (1) "Agricultural labor" means any remunerated service:
(A) On a farm, in the employ of any person, in connection withcultivating the soil, or in connection with raising or harvesting anyagricultural or horticultural commodity, including the raising,shearing, feeding, caring for, training, and management of livestock,bees, poultry, and furbearing animals and wildlife.
(B) In the employ of the owner or tenant or other operator of afarm, in connection with the operating, management, conservation,improvement, or maintenance of such farm and its tools and equipment, orin salvaging timber or clearing land of brush and other debris left by ahurricane, if the major part of such service is performed on a farm.
(C) In connection with the production or harvesting of any commoditydefined as an agricultural commodity in section (15)(g) of theagricultural marketing act, as amended (46 Stat. 1500, sec. 3; 12 U.S.C.1141j) or in connection with the ginning of cotton, or in connectionwith the operation or maintenance of ditches, canals, reservoirs orwaterways, not owned or operated for profit, used exclusively forsupplying and storing water for farming purposes.
(D) (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 fortransportation to market, in its unmanufactured state, any agriculturalor horticultural commodity; but only if such operator produced more than1/2 of the commodity with respect to which such service is performed;
(ii) in the employ of a group of operators of farms (or acooperative organization of which such operators are members) in theperformance of service described in paragraph (i) above of this subsection(w)(1)(D), but only if such operators produced more than 1/2 of thecommodity with respect to which such service is performed;
(iii) the provisions of paragraphs (i) and (ii) above of this subsection(w)(1)(D) shall not be deemed to be applicable with respect to serviceperformed in connection with commercial canning or commercial freezingor in connection with any agricultural or horticultural commodity afterits delivery to a terminal market for distribution for consumption.
(E) On a farm operated for profit if such service is not in thecourse of the employer's trade or business.
(2) "Agricultural labor" does not include service performed prior toJanuary 1, 1980, by an individual who is an alien admitted to the UnitedStates to perform service in agricultural labor pursuant to sections 214(c)and 101(a)(15)(H) of the federal immigration and nationality act.
(3) As used in this subsection (w), the term "farm" includes stock,dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations,ranches, nurseries, ranges, greenhouses, or other similar structuresused primarily for the raising of agricultural or horticulturalcommodities, and orchards.
(4) For the purpose of this section, if an employing unit does notmaintain sufficient records to separate agricultural labor from otheremployment, all services performed during any pay period by an individual forthe person employing such individual shall be deemed to be agricultural laborif services performed during 1/2 or more of such pay period constituteagricultural labor; but if the services performed during more than 1/2 of anysuch pay period by an individual for the person employing such individual donot constitute agricultural labor, then none of the services of such individualfor such period shall be deemed to be agricultural labor. As used in thissubsection (w), the term "pay period" means a period of not more than 31consecutive days for which a payment of remuneration is ordinarily made to theindividual by the person employing such individual.
(x) "Reimbursing employer" means any employer who makes payments inlieu of contributions to the employment security fund as provided insubsection (e) of K.S.A. 44-710 and amendments thereto.
(y) "Contributing employer" means any employer other than areimbursing employer or rated governmental employer.
(z) "Wage combining plan" means a uniform national arrangementapproved by the United States secretary of labor in consultation withthe state unemployment compensation agencies and in which this stateshall participate, whereby wages earned in one or more states aretransferred to another state, called the "paying state," and combinedwith wages in the paying state, if any, for the payment of benefitsunder the laws of the paying state and as provided by an arrangement soapproved by the United States secretary of labor.
(aa) "Domestic service" means any service for a person in theoperation and maintenance of a private household, local college club orlocal chapter of a college fraternity or sorority, as distinguished fromservice as an employee in the pursuit of an employer's trade,occupation, profession, enterprise or vocation.
(bb) "Rated governmental employer" means any governmental entitywhich elects to make payments as provided by K.S.A. 44-710dand amendments thereto.
(cc) "Benefit cost payments" means payments made to the employmentsecurity fund by a governmental entity electing to become a ratedgovernmental employer.
(dd) "Successor employer" means any employer, as described in subsection(h) of this section, which acquires or in any manner succeeds to (1)substantially all of the employing enterprises, organization, trade or businessof anotheremployer or (2) substantially all the assets of another employer.
(ee) "Predecessor employer" means an employer, as described in subsection(h) of this section, who has previously operated a business or portion ofa business with employment to which another employer has succeeded.
(ff) "Lessor employing unit" means any independently establishedbusiness entity which engages in the business of providing leased employeesto a client lessee.
(gg) "Client lessee" means any individual, organization, partnership,corporation or other legal entity leasing employees from a lessoremploying unit.
(hh) "Qualifying injury" means a personal injury by accident arising outof and in the course of employment within the coverage of the Kansas workerscompensation act, K.S.A. 44-501 et seq., and amendments thereto.
History: L. 1937, ch. 255, § 3;L. 1938, ch. 51, § 1;L. 1939, ch. 214, § 1;L. 1941, ch. 264, § 1;L. 1943, ch. 190, § 1;L. 1945, ch. 220, § 1;L. 1947, ch. 291, § 1;L. 1949, ch. 288, § 2;L. 1951, ch. 307, § 1;L. 1955, ch. 251, § 1;L. 1970, ch. 191, § 1;L. 1971, ch. 180, § 1;L. 1972, ch. 161, § 13;L. 1973, ch. 205, § 1;L. 1975, ch. 462, § 54;L. 1976, ch. 226, § 1;L. 1976, ch. 370, § 56;L. 1977, ch. 181, § 1;L. 1979, ch. 159, § 1;L. 1981, ch. 204, § 1;L. 1983, ch. 169, § 1;L. 1984, ch. 183, § 1;L. 1984, ch. 185, § 1;L. 1984, ch. 184, § 4;L. 1986, ch. 190, § 1;L. 1987, ch, 190, §1;L. 1987, ch. 191, § 1;L. 1988, ch. 170, § 1;L. 1988, ch. 171, § 1;L. 1989, ch. 150, § 1;L. 1990, ch. 186, § 2;L. 1990, ch. 187, § 1;L. 1990, ch. 188, § 1;L. 1992, ch. 74, § 1;L. 1994, ch. 49, § 1;L. 1995, ch. 50, § 1;L. 1996, ch. 232, § 2;L. 1997, ch. 174, § 1;L. 1998, ch. 124, § 1;L. 2001, ch. 139, § 1;L. 2002, ch. 84, § 1;L. 2003, ch. 96, § 6;L. 2004, ch. 105, § 6;L. 2004, ch. 179, § 53;L. 2005, ch. 138, § 1;L. 2007, ch. 16, § 1;L. 2007, ch. 195, § 27;L. 2009, ch. 129, § 1; Jan. 1, 2010.