Session Law

Identifying Information:L. 2003 ch. 096
Other Identifying Information:2003 House Bill 2332
Tax Type:Other
Brief Description:An Act relating to employment security law; concerning social security benefits; relating to the definition of employment; amending K.S.A. 44-704 and 44-757 and K.S.A. 2002 Supp. 44-703, 44-706 and 44-710 and repealing the existing sections.
Keywords:


Body:

CHAPTER 96

HOUSE BILL No. 2332

(Amended by Chapter 158)


An Act relating to employment security law; concerning social security benefits; relating to

the definition of employment; amending K.S.A. 44-704 and 44-757 and K.S.A. 2002


Supp. 44-703, 44-706 and 44-710 and repealing the existing sections.


Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 44-704 is hereby amended to read as follows: 44-

704. (a) Payment of benefits. All benefits provided herein shall be payable

from the fund. All benefits shall be paid through the secretary of human

resources, in accordance with such rules and regulations as the secretary

may adopt. Benefits based on service in employment defined in subsec-

tions (i)(3)(E) and (i)(3)(F) of K.S.A. 44-703, and amendments thereto,

shall be payable in the same amount, on the same terms and subject to

the same conditions as compensation payable on the basis of other service

subject to this act except as provided in subsection (e) of K.S.A. 44-705

and subsection (e)(2) of K.S.A. 44-711, and any amendments to these

statutes.

(b) Determined weekly benefit amount. An individual's determined

weekly benefit amount shall be an amount equal to 4.25% of the individ-

ual's total wages for insured work paid during that calendar quarter of

the individual's base period in which such total wages were highest, sub-

ject to the following limitations:

(1) If an individual's determined weekly benefit amount is less than

the minimum weekly benefit amount, it shall be raised to such minimum

weekly benefit amount;

(2) if the individual's determined weekly benefit amount is more than

the maximum weekly benefit amount, it shall be reduced to the maximum

weekly benefit amount; and

(3) if the individual's determined weekly benefit amount is not a mul-

tiple of $1, it shall be reduced to the next lower multiple of $1.

(c) Maximum weekly benefit amount. On July 1 of each year, the

secretary shall determine the maximum weekly benefit amount by com-

puting 60% of the average weekly wages paid to employees in insured

work during the previous calendar year and shall prior to that date an-

nounce the maximum weekly benefit amount so determined, by publi-

cation in the Kansas register. Such computation shall be made by dividing

the gross wages reported as paid for insured work during the previous

calendar year by the product of the average of midmonth employment

during such calendar year multiplied by 52. The maximum weekly benefit

amount so determined and announced for the twelve-month period shall

apply only to those claims filed in that period qualifying for maximum

payment under the foregoing formula. All claims qualifying for payment

at the maximum weekly benefit amount shall be paid at the maximum

weekly benefit amount in effect when the benefit year to which the claim

relates was first established, notwithstanding a change in the maximum

benefit amount for a subsequent twelve-month period. If the computed

maximum weekly benefit amount is not a multiple of $1, then the com-

puted maximum weekly benefit amount shall be reduced to the next lower

multiple of $1.

(d) Minimum weekly benefit amount. The minimum weekly benefit

amount payable to any individual shall be 25% of the maximum weekly

benefit calculated in accordance with subsection (c) and shall be an-

nounced by the secretary in conjunction with the published announce-

ment of the maximum weekly benefit, also as provided in subsection (c).

The minimum weekly benefit amount so determined and announced for

the twelve-month period beginning July 1 of each year shall apply only

to those claims which establish a benefit year filed within that twelve-

month period and shall apply through the benefit year of such claims

notwithstanding a change in such amount in a subsequent twelve-month

period. If the minimum weekly benefit amount is not a multiple of $1 it

shall be reduced to the next lower multiple of $1.

(e) Weekly benefit payable. Each eligible individual who is unem-

ployed with respect to any week, except as to final payment, shall be paid

with respect to such week a benefit in an amount equal to such individ-

ual's determined weekly benefit amount, less that part of the wage, if any,

payable to such individual with respect to such week which is in excess

of the amount which is equal to 25% of such individual's determined

weekly benefit amount and if the resulting amount is not a multiple of

$1, it shall be reduced to the next lower multiple of $1.

(1) For the purposes of this section, remuneration received under

the following circumstances shall be construed as wages:

(A) Vacation pay that was attributable to a week that the individual

claimed benefits while work was temporarily interrupted;

(B) holiday pay that was payable with no condition of attendance on

other regularly scheduled day or days; and

(C) severance pay, if paid as scheduled, and all other employment

benefits within the employer's control, as defined in subsection (e)(3), if

continued as though the severance had not occurred, except as set out in

subsection (e)(2)(D).

(2) For the purposes of this section, remuneration received under

the following circumstances shall not be construed as wages:

(A) Remuneration received for services performed on a public assis-

tance work project;

(B) vacation pay, except as set out in subsection (e)(1)(A) above;

(C) holiday pay that was not payable unless the individual complied

with a condition of attendance on another regularly scheduled day or days;

(D) severance pay, in lieu of notice, under the provisions of public

law 100-379, the federal worker adjustment and retraining notification

act (29 U.S.C.A. 2101 through 2109); and

(E) all other severance pay, separation pay, bonuses, wages in lieu of

notice or remuneration of a similar nature that is payable after the sev-

erance of the employment relationship, except as set out in subsection

(e)(1)(C).; and

(F) moneys received as federal social security payments.

(3) For the purposes of this subsection (e), ``employment benefits

within the employer's control'' means benefits offered by the employer

to employees which are employee benefit plans as defined by section 3

of the federal employee retirement income security act of 1974, as

amended, (29 U.S.C. 1002) and which the employer has the option to

continue to provide to the employee after the last day that the employee

worked for that employer.

(f) Duration of benefits. Any otherwise eligible individual shall be

entitled during any benefit year to a total amount of benefits equal to

whichever is the lesser of 26 times such individual's weekly benefit

amount, or 1/3 of such individual's wages for insured work paid during

such individual's base period. Such total amount of benefits, if not a mul-

tiple of $1, shall be reduced to the next lower multiple of $1.

(g) For the purposes of this section, wages shall be counted as ``wages

for insured work'' for benefit purposes with respect to any benefit year

only if such benefit year begins subsequent to the date on which the

employing unit by whom such wages were paid has satisfied the condi-

tions of subsection (h) of K.S.A. 44-703, and amendments thereto, with

respect to becoming an employer.

Sec. 2. K.S.A. 2002 Supp. 44-706 is hereby amended to read as fol-

lows: 44-706. An individual shall be disqualified for benefits:

(a) If the individual left work voluntarily without good cause attrib-

utable to the work or the employer, subject to the other provisions of this

subsection (a). After a temporary job assignment, failure of an individual

to affirmatively request an additional assignment on the next succeeding

workday, if required by the employment agreement, after completion of

a given work assignment, shall constitute leaving work voluntarily. The

disqualification shall begin the day following the separation and shall con-

tinue until after the individual has become reemployed and has had earn-

ings from insured work of at least three times the individual's weekly

benefit amount. An individual shall not be disqualified under this sub-

section (a) if:

(1) The individual was forced to leave work because of illness or injury

upon the advice of a licensed and practicing health care provider and,

upon learning of the necessity for absence, immediately notified the em-

ployer thereof, or the employer consented to the absence, and after re-

covery from the illness or injury, when recovery was certified by a prac-

ticing health care provider, the individual returned to the employer and

offered to perform services and the individual's regular work or compa-

rable and suitable work was not available; as used in this paragraph (1)

``health care provider'' means any person licensed by the proper licensing

authority of any state to engage in the practice of medicine and surgery,

osteopathy, chiropractic, dentistry, optometry, podiatry or psychology;

(2) the individual left temporary work to return to the regular em-

ployer;

(3) the individual left work to enlist in the armed forces of the United

States, but was rejected or delayed from entry;

(4) the individual left work because of the voluntary or involuntary

transfer of the individual's spouse from one job to another job, which is

for the same employer or for a different employer, at a geographic loca-

tion which makes it unreasonable for the individual to continue work at

the individual's job;

(5) the individual left work because of hazardous working conditions;

in determining whether or not working conditions are hazardous for an

individual, the degree of risk involved to the individual's health, safety

and morals, the individual's physical fitness and prior training and the

working conditions of workers engaged in the same or similar work for

the same and other employers in the locality shall be considered; as used

in this paragraph (5), ``hazardous working conditions'' means working con-

ditions that could result in a danger to the physical or mental well-being

of the individual; each determination as to whether hazardous working

conditions exist shall include, but shall not be limited to, a consideration

of (A) the safety measures used or the lack thereof, and (B) the condition

of equipment or lack of proper equipment; no work shall be considered

hazardous if the working conditions surrounding the individual's work are

the same or substantially the same as the working conditions generally

prevailing among individuals performing the same or similar work for

other employers engaged in the same or similar type of activity;

(6) the individual left work to enter training approved under section

236(a)(1) of the federal trade act of 1974, provided the work left is not

of a substantially equal or higher skill level than the individual's past

adversely affected employment (as defined for purposes of the federal

trade act of 1974), and wages for such work are not less than 80% of the

individual's average weekly wage as determined for the purposes of the

federal trade act of 1974;

(7) the individual left work because of unwelcome harassment of the

individual by the employer or another employee of which the employing

unit had knowledge;

(8) the individual left work to accept better work; each determination

as to whether or not the work accepted is better work shall include, but

shall not be limited to, consideration of (A) the rate of pay, the hours of

work and the probable permanency of the work left as compared to the

work accepted, (B) the cost to the individual of getting to the work left

in comparison to the cost of getting to the work accepted, and (C) the

distance from the individual's place of residence to the work accepted in

comparison to the distance from the individual's residence to the work

left;

(9) the individual left work as a result of being instructed or requested

by the employer, a supervisor or a fellow employee to perform a service

or commit an act in the scope of official job duties which is in violation

of an ordinance or statute;

(10) the individual left work because of a violation of the work agree-

ment by the employing unit and, before the individual left, the individual

had exhausted all remedies provided in such agreement for the settlement

of disputes before terminating; or

(11) after making reasonable efforts to preserve the work, the indi-

vidual left work due to a personal emergency of such nature and com-

pelling urgency that it would be contrary to good conscience to impose a

disqualification.

(b) If the individual has been discharged for misconduct connected

with the individual's work. The disqualification shall begin the day follow-

ing the separation and shall continue until after the individual becomes

reemployed and has had earnings from insured work of at least three

times the individual's determined weekly benefit amount, except that if

an individual is discharged for gross misconduct connected with the in-

dividual's work, such individual shall be disqualified for benefits until such

individual again becomes employed and has had earnings from insured

work of at least eight times such individual's determined weekly benefit

amount. In addition, all wage credits attributable to the employment from

which the individual was discharged for gross misconduct connected with

the individual's work shall be canceled. No such cancellation of wage

credits shall affect prior payments made as a result of a prior separation.

(1) For the purposes of this subsection (b), ``misconduct'' is defined

as a violation of a duty or obligation reasonably owed the employer as a

condition of employment. The term ``gross misconduct'' as used in this

subsection (b) shall be construed to mean conduct evincing extreme, will-

ful or wanton misconduct as defined by this subsection (b).

(2) For the purposes of this subsection (b), the use of or impairment

caused by an alcoholic beverage, a cereal malt beverage or a nonprescri-

bed controlled substance by an individual while working shall be conclu-

sive evidence of misconduct and the possession of an alcoholic beverage,

a cereal malt beverage or a nonprescribed controlled substance by an

individual while working shall be prima facie evidence of conduct which

is a violation of a duty or obligation reasonably owed to the employer as

a condition of employment. For purposes of this subsection (b), the dis-

qualification of an individual from employment which disqualification is

required by the provisions of the drug free workplace act, 41 U.S.C. 701

et seq. or is otherwise required by law because the individual refused to

submit to or failed a chemical test which was required by law, shall be

conclusive evidence of misconduct. Refusal to submit to a chemical test

administered pursuant to an employee assistance program or other drug

or alcohol treatment program in which the individual was participating

voluntarily or as a condition of further employment shall also be conclu-

sive evidence of misconduct. Alcoholic liquor shall be defined as provided

in K.S.A. 41-102 and amendments thereto. Cereal malt beverage shall be

defined as provided in K.S.A. 41-2701 and amendments thereto. Con-

trolled substance shall be defined as provided in K.S.A. 65-4101 and

amendments thereto of the uniform controlled substances act. As used

in this subsection (b)(2), ``required by law'' means required by a federal

or state law, a federal or state rule or regulation having the force and

effect of law, a county resolution or municipal ordinance, or a policy

relating to public safety adopted in open meeting by the governing body

of any special district or other local governmental entity. An individual's

refusal to submit to a chemical test shall not be admissible evidence to

prove misconduct unless the test is required by and meets the standards

of the drug free workplace act, 41 U.S.C. 701 et seq., the test was ad-

ministered as part of an employee assistance program or other drug or

alcohol treatment program in which the employee was participating vol-

untarily or as a condition of further employment, the test was otherwise

required by law and the test constituted a required condition of employ-

ment for the individual's job, or, there was probable cause to believe that

the individual used, possessed or was impaired by an alcoholic beverage,

a cereal malt beverage or a controlled substance while working. The re-

sults of a chemical test shall not be admissible evidence to prove miscon-

duct unless the following conditions were met:

(A) Either (i) the test was required by law, the test was administered

pursuant to the drug free workplace act, 41 U.S.C. 701 et seq., (ii) the

test was administered as part of an employee assistance program or other

drug or alcohol treatment program in which the employee was partici-

pating voluntarily or as a condition of further employment, (iii) the test

was required by law and the test constituted a required condition of em-

ployment for the individual's job, or (iv) there was probable cause to

believe that the individual used, had possession of, or was impaired by

the alcoholic beverage, the cereal malt beverage or the controlled sub-

stance while working;

(B) the test sample was collected either (i) as prescribed by the drug

free workplace act, 41 U.S.C. 701 et seq., (ii) as prescribed by an em-

ployee assistance program or other drug or alcohol treatment program in

which the employee was participating voluntarily or as a condition of

further employment, (iii) as prescribed by a test which was required by

law and which constituted a required condition of employment for the

individual's job, or (iv) at a time contemporaneous with the events estab-

lishing probable cause;

(C) the collecting and labeling of the test sample was performed by

a licensed health care professional or any other individual authorized to

collect or label test samples by federal or state law, or a federal or state

rule or regulation having the force and effect of law, including law en-

forcement personnel;

(D) the test was performed by a laboratory approved by the United

States department of health and human services or licensed by the de-

partment of health and environment, except that a blood sample may be

tested for alcohol content by a laboratory commonly used for that purpose

by state law enforcement agencies;

(E) the test was confirmed by gas chromatography, gas chromatog-

raphy-mass spectroscopy or other comparably reliable analytical method,

except that no such confirmation is required for a blood alcohol sample;

and

(F) the foundation evidence must establish, beyond a reasonable

doubt, that the test results were from the sample taken from the individ-

ual.

(3) For the purposes of this subsection (b), misconduct shall include,

but not be limited to repeated absence, including lateness, from sched-

uled work if the facts show:

(A) The individual was absent without good cause;

(B) the absence was in violation of the employer's written absentee-

ism policy;

(C) the employer gave or sent written notice to the individual, at the

individual's last known address, that future absence may or will result in

discharge;

(D) the employee had knowledge of the employer's written absen-

teeism policy; and

(E) if an employee disputes being absent without good cause, the

employee shall present evidence that a majority of the employee's ab-

sences were for good cause.

(4) An individual shall not be disqualified under this subsection (b)

if the individual is discharged under the following circumstances:

(A) The employer discharged the individual after learning the indi-

vidual was seeking other work or when the individual gave notice of future

intent to quit;

(B) the individual was making a good-faith effort to do the assigned

work but was discharged due to: (i) Inefficiency, (ii) unsatisfactory per-

formance due to inability, incapacity or lack of training or experience, (iii)

isolated instances of ordinary negligence or inadvertence, (iv) good-faith

errors in judgment or discretion, or (v) unsatisfactory work or conduct

due to circumstances beyond the individual's control; or

(C) the individual's refusal to perform work in excess of the contract

of hire.

(c) If the individual has failed, without good cause, to either apply

for suitable work when so directed by the employment office of the sec-

retary of human resources, or to accept suitable work when offered to

the individual by the employment office, the secretary of human re-

sources, or an employer, such disqualification shall begin with the week

in which such failure occurred and shall continue until the individual

becomes reemployed and has had earnings from insured work of at least

three times such individual's determined weekly benefit amount. In de-

termining whether or not any work is suitable for an individual, the sec-

retary of human resources, or a person or persons designated by the

secretary, shall consider the degree of risk involved to health, safety and

morals, physical fitness and prior training, experience and prior earnings,

length of unemployment and prospects for securing local work in the

individual's customary occupation or work for which the individual is rea-

sonably fitted by training or experience, and the distance of the available

work from the individual's residence. Notwithstanding any other provi-

sions of this act, an otherwise eligible individual shall not be disqualified

for refusing an offer of suitable employment, or failing to apply for suit-

able employment when notified by an employment office, or for leaving

the individual's most recent work accepted during approved training, in-

cluding training approved under section 236(a)(1) of the trade act of 1974,

if the acceptance of or applying for suitable employment or continuing

such work would require the individual to terminate approved training

and no work shall be deemed suitable and benefits shall not be denied

under this act to any otherwise eligible individual for refusing to accept

new work under any of the following conditions: (1) If the position offered

is vacant due directly to a strike, lockout or other labor dispute; (2) if the

remuneration, hours or other conditions of the work offered are substan-

tially less favorable to the individual than those prevailing for similar work

in the locality; (3) if as a condition of being employed, the individual would

be required to join or to resign from or refrain from joining any labor

organization.

(d) For any week with respect to which the secretary of human re-

sources, or a person or persons designated by the secretary, finds that the

individual's unemployment is due to a stoppage of work which exists be-

cause of a labor dispute or there would have been a work stoppage had

normal operations not been maintained with other personnel previously

and currently employed by the same employer at the factory, establish-

ment or other premises at which the individual is or was last employed,

except that this subsection (d) shall not apply if it is shown to the satis-

faction of the secretary of human resources, or a person or persons des-

ignated by the secretary, that: (1) The individual is not participating in or

financing or directly interested in the labor dispute which caused the

stoppage of work; and (2) the individual does not belong to a grade or

class of workers of which, immediately before the commencement of the

stoppage, there were members employed at the premises at which the

stoppage occurs any of whom are participating in or financing or directly

interested in the dispute. If in any case separate branches of work which

are commonly conducted as separate businesses in separate premises are

conducted in separate departments of the same premises, each such de-

partment shall, for the purpose of this subsection (d), be deemed to be

a separate factory, establishment or other premises. For the purposes of

this subsection (d), failure or refusal to cross a picket line or refusal for

any reason during the continuance of such labor dispute to accept the

individual's available and customary work at the factory, establishment or

other premises where the individual is or was last employed shall be

considered as participation and interest in the labor dispute.

(e) For any week with respect to which or a part of which the indi-

vidual has received or is seeking unemployment benefits under the un-

employment compensation law of any other state or of the United States,

except that if the appropriate agency of such other state or the United

States finally determines that the individual is not entitled to such un-

employment benefits, this disqualification shall not apply.

(f) For any week with respect to which the individual is entitled to

receive any unemployment allowance or compensation granted by the

United States under an act of congress to ex-service men and women in

recognition of former service with the military or naval services of the

United States.

(g) For the period of one year beginning with the first day following

the last week of unemployment for which the individual received benefits,

or for one year from the date the act was committed, whichever is the

later, if the individual, or another in such individual's behalf with the

knowledge of the individual, has knowingly made a false statement or

representation, or has knowingly failed to disclose a material fact to obtain

or increase benefits under this act or any other unemployment compen-

sation law administered by the secretary of human resources.

(h) For any week with respect to which the individual is receiving

compensation for temporary total disability or permanent total disability

under the workmen's compensation law of any state or under a similar

law of the United States.

(i) For any week of unemployment on the basis of service in an in-

structional, research or principal administrative capacity for an educa-

tional institution as defined in subsection (v) of K.S.A. 44-703 and amend-

ments thereto, if such week begins during the period between two

successive academic years or terms or, when an agreement provides in-

stead for a similar period between two regular but not successive terms

during such period or during a period of paid sabbatical leave provided

for in the individual's contract, if the individual performs such services in

the first of such academic years or terms and there is a contract or a

reasonable assurance that such individual will perform services in any

such capacity for any educational institution in the second of such aca-

demic years or terms.

(j) For any week of unemployment on the basis of service in any

capacity other than service in an instructional, research, or administrative

capacity in an educational institution, as defined in subsection (v) of

K.S.A. 44-703 and amendments thereto, if such week begins during the

period between two successive academic years or terms if the individual

performs such services in the first of such academic years or terms and

there is a reasonable assurance that the individual will perform such serv-

ices in the second of such academic years or terms, except that if benefits

are denied to the individual under this subsection (j) and the individual

was not offered an opportunity to perform such services for the educa-

tional institution for the second of such academic years or terms, such

individual shall be entitled to a retroactive payment of benefits for each

week for which the individual filed a timely claim for benefits and for

which benefits were denied solely by reason of this subsection (j).

(k) For any week of unemployment on the basis of service in any

capacity for an educational institution as defined in subsection (v) of

K.S.A. 44-703 and amendments thereto, if such week begins during an

established and customary vacation period or holiday recess, if the indi-

vidual performs services in the period immediately before such vacation

period or holiday recess and there is a reasonable assurance that such

individual will perform such services in the period immediately following

such vacation period or holiday recess.

(l) For any week of unemployment on the basis of any services, sub-

stantially all of which consist of participating in sports or athletic events

or training or preparing to so participate, if such week begins during the

period between two successive sport seasons or similar period if such

individual performed services in the first of such seasons or similar per-

iods and there is a reasonable assurance that such individual will perform

such services in the later of such seasons or similar periods.

(m) For any week on the basis of services performed by an alien

unless such alien is an individual who was lawfully admitted for perma-

nent residence at the time such services were performed, was lawfully

present for purposes of performing such services, or was permanently

residing in the United States under color of law at the time such services

were performed, including an alien who was lawfully present in the

United States as a result of the application of the provisions of section

212(d)(5) of the federal immigration and nationality act. Any data or in-

formation required of individuals applying for benefits to determine

whether benefits are not payable to them because of their alien status

shall be uniformly required from all applicants for benefits. In the case

of an individual whose application for benefits would otherwise be ap-

proved, no determination that benefits to such individual are not payable

because of such individual's alien status shall be made except upon a

preponderance of the evidence.

(n) For any week in which an individual is receiving a governmental

or other pension, retirement or retired pay, annuity or other similar pe-

riodic payment under a plan maintained by a base period employer and

to which the entire contributions were provided by such employer, except

that: (1) If the entire contributions to such plan were provided by the

base period employer but such individual's weekly benefit amount ex-

ceeds such governmental or other pension, retirement or retired pay,

annuity or other similar periodic payment attributable to such week, the

weekly benefit amount payable to the individual shall be reduced (but

not below zero) by an amount equal to the amount of such pension,

retirement or retired pay, annuity or other similar periodic payment

which is attributable to such week; or (2) if only a portion of contributions

to such plan were provided by the base period employer, the weekly

benefit amount payable to such individual for such week shall be reduced

(but not below zero) by the prorated weekly amount of the pension, re-

tirement or retired pay, annuity or other similar periodic payment after

deduction of that portion of the pension, retirement or retired pay, an-

nuity or other similar periodic payment that is directly attributable to the

percentage of the contributions made to the plan by such individual; or

(3) if the entire contributions to the plan were provided by such individ-

ual, or by the individual and an employer (or any person or organization)

who is not a base period employer, no reduction in the weekly benefit

amount payable to the individual for such week shall be made under this

subsection (n); or (4) whatever portion of contributions to such plan were

provided by the base period employer, if the services performed for the

employer by such individual during the base period, or remuneration

received for the services, did not affect the individual's eligibility for, or

increased the amount of, such pension, retirement or retired pay, annuity

or other similar periodic payment, no reduction in the weekly benefit

amount payable to the individual for such week shall be made under this

subsection (n). The conditions specified in clause (4) of this subsection

(n) shall not apply to payments made under the social security act or the

railroad retirement act of 1974, or the corresponding provisions of prior

law. Payments made under these acts shall be treated as otherwise pro-

vided in this subsection (n). If the reduced weekly benefit amount is not

a multiple of $1, it shall be reduced to the next lower multiple of $1 No

reduction shall be made for payments made under the social security act

or railroad retirement act of 1974.

(o) For any week of unemployment on the basis of services per-

formed in any capacity and under any of the circumstances described in

subsection (i), (j) or (k) which an individual performed in an educational

institution while in the employ of an educational service agency. For the

purposes of this subsection (o), the term ``educational service agency''

means a governmental agency or entity which is established and operated

exclusively for the purpose of providing such services to one or more

educational institutions.

(p) For any week of unemployment on the basis of service as a school

bus or other motor vehicle driver employed by a private contractor to

transport pupils, students and school personnel to or from school-related

functions or activities for an educational institution, as defined in subsec-

tion (v) of K.S.A. 44-703 and amendments thereto, if such week begins

during the period between two successive academic years or during a

similar period between two regular terms, whether or not successive, if

the individual has a contract or contracts, or a reasonable assurance

thereof, to perform services in any such capacity with a private contractor

for any educational institution for both such academic years or both such

terms. An individual shall not be disqualified for benefits as provided in

this subsection (p) for any week of unemployment on the basis of service

as a bus or other motor vehicle driver employed by a private contractor

to transport persons to or from nonschool-related functions or activities.

(q) For any week of unemployment on the basis of services per-

formed by the individual in any capacity and under any of the circum-

stances described in subsection (i), (j), (k) or (o) which are provided to

or on behalf of an educational institution, as defined in subsection (v) of

K.S.A. 44-703 and amendments thereto, while the individual is in the

employ of an employer which is a governmental entity, Indian tribe or

any employer described in section 501(c)(3) of the federal internal rev-

enue code of 1986 which is exempt from income under section 501(a) of

the code.

(r) For any week in which an individual is registered at and attending

an established school, training facility or other educational institution, or

is on vacation during or between two successive academic years or terms.

An individual shall not be disqualified for benefits as provided in this

subsection (r) provided:

(1) The individual was engaged in full-time employment concurrent

with the individual's school attendance; or

(2) the individual is attending approved training as defined in sub-

section (s) of K.S.A. 44-703 and amendments thereto; or

(3) the individual is attending evening, weekend or limited day time

classes, which would not affect availability for work, and is otherwise

eligible under subsection (c) of K.S.A. 44-705 and amendments thereto.

(s) For any week with respect to which an individual is receiving or

has received remuneration in the form of a back pay award or settlement.

The remuneration shall be allocated to the week or weeks in the manner

as specified in the award or agreement, or in the absence of such speci-

ficity in the award or agreement, such remuneration shall be allocated to

the week or weeks in which such remuneration, in the judgment of the

secretary, would have been paid.

(1) For any such weeks that an individual receives remuneration in

the form of a back pay award or settlement, an overpayment will be

established in the amount of unemployment benefits paid and shall be

collected from the claimant.

(2) If an employer chooses to withhold from a back pay award or

settlement, amounts paid to a claimant while they claimed unemployment

benefits, such employer shall pay the department the amount withheld.

With respect to such amount, the secretary shall have available all of the

collection remedies authorized or provided in K.S.A. 44-717, and amend-

ments thereto.

Sec. 3. K.S.A. 44-757 is hereby amended to read as follows: 44-757.

Shared work unemployment compensation program. (a) As used in this

section:

(1) ``Affected unit'' means a specified department, shift or other unit

of two or more employees that is designated by an employer to participate

in a shared work plan.

(2) ``Fringe benefit'' means health insurance, a retirement benefit

received under a pension plan, a paid vacation day, a paid holiday, sick

leave, and any other analogous employee benefit that is provided by an

employer.

(3) ``Fund'' has the meaning ascribed thereto by subsection (k) of

K.S.A. 44-703 and amendments thereto.

(4) ``Normal weekly hours of work'' means the lesser of 40 hours or

the average obtained by dividing the total number of hours worked per

week during the preceding twelve-week period by the number 12.

(5) ``Participating employee'' means an employee who works a re-

duced number of hours under a shared work plan.

(6) ``Participating employer'' means an employer who has a shared

work plan in effect.

(7) ``Secretary'' means the secretary of human resources or the sec-

retary's designee.

(8) ``Shared work benefit'' means an unemployment compensation

benefit that is payable to an individual in an affected unit because the

individual works reduced hours under an approved shared work plan.

(9) ``Shared work plan'' means a program for reducing unemployment

under which employees who are members of an affected unit share the

work remaining after a reduction in their normal weekly hours of work.

(10) ``Shared work unemployment compensation program'' means a

program designed to reduce unemployment and stabilize the work force

by allowing certain employees to collect unemployment compensation

benefits if the employees share the work remaining after a reduction in

the total number of hours of work and a corresponding reduction in

wages.

(b) The secretary shall establish a voluntary shared work unemploy-

ment compensation program as provided by this section. The secretary

may adopt rules and regulations and establish procedures necessary to

administer the shared work unemployment compensation program.

(c) An employer who wishes to participate in the shared work un-

employment compensation program must submit a written shared work

plan to the secretary for the secretary's approval. As a condition for ap-

proval, a participating employer must agree to furnish the secretary with

reports relating to the operation of the shared work plan as requested by

the secretary. The employer shall monitor and evaluate the operation of

the established shared work plan as requested by the secretary and shall

report the findings to the secretary.

(d) The secretary may approve a shared work plan if:

(1) The shared work plan applies to and identifies a specific affected

unit;

(2) the employees in the affected unit are identified by name and

social security number;

(3) the shared work plan reduces the normal weekly hours of work

for an employee in the affected unit by not less than 20% and not more

than 40%;

(4) the shared work plan applies to at least 10% of the employees in

the affected unit;

(5) the shared work plan describes the manner in which the partici-

pating employer treats the fringe benefits of each employee in the af-

fected unit;

(6) the employer certifies that the implementation of a shared work

plan and the resulting reduction in work hours is in lieu of temporary

layoffs that would affect at least 10% of the employees in the affected

unit and that would result in an equivalent reduction in work hours;

(7) the employer has filed all reports required to be filed under the

employment security law for all past and current periods and has paid all

contributions, benefit cost payments, or if a reimbursing employer has

made all payments in lieu of contributions due for all past and current

periods; and

(8) (A) a contributing employer must be eligible for a rate compu-

tation under subsection (a)(2) of K.S.A. 44-710a and amendments thereto

and is not a negative account employer as defined by subsection (d) of

K.S.A. 44-710a and amendments thereto; (B) a rated governmental em-

ployer must be eligible for a rate computation under subsection (g) of

K.S.A. 44-710d and amendments thereto.

(e) If any of the employees who participate in a shared work plan

under this section are covered by a collective bargaining agreement, the

shared work plan must be approved in writing by the collective bargaining

agent.

(f) A shared work plan may not be implemented to subsidize seasonal

employers during the off-season or to subsidize employers who have tra-

ditionally used part-time employees.

(g) The secretary shall approve or deny a shared work plan no later

than the 30th day after the day the shared work plan is received by the

secretary. The secretary shall approve or deny a shared work plan in

writing. If the secretary denies a shared work plan, the secretary shall

notify the employer of the reasons for the denial.

(h) A shared work plan is effective on the date it is approved by the

secretary, except for good cause a shared work plan may be effective at

any time within a period of 14 days prior to the date such plan is approved

by the secretary. The shared work plan expires on the last day of the 12th

full calendar month after the effective date of the shared work plan.

(i) An employer may modify a shared work plan created under this

section to meet changed conditions if the modification conforms to the

basic provisions of the shared work plan as approved by the secretary.

The employer must report the changes made to the shared work plan in

writing to the secretary before implementing the changes. If the original

shared work plan is substantially modified, the secretary shall reevaluate

the shared work plan and may approve the modified shared work plan if

it meets the requirements for approval under subsection (d). The approval

of a modified shared work plan does not affect the expiration date origi-

nally set for that shared work plan. If substantial modifications cause the

shared work plan to fail to meet the requirements for approval, the sec-

retary shall deny approval to the modifications as provided by subsection

(g).

(j) Notwithstanding any other provisions of the employment security

law, an individual is unemployed and is eligible for shared work benefits

in any week in which the individual, as an employee in an affected unit,

works for less than the individual's normal weekly hours of work in ac-

cordance with an approved shared work plan in effect for that week. The

secretary may not deny shared work benefits for any week to an otherwise

eligible individual by reason of the application of any provision of the

employment security law that relates to availability for work, active search

for work or refusal to apply for or accept work with an employer other

than the participating employer.

(k) An individual is eligible to receive shared work benefits with re-

spect to any week in which the secretary finds that:

(1) The individual is employed as a member of an affected unit sub-

ject to a shared work plan that was approved before the week in question

and is in effect for that week;

(2) the individual is able to work and is available for additional hours

of work or full-time work with the participating employer;

(3) the individual's normal weekly hours of work have been reduced

by at least 20% but not more than 40%, with a corresponding reduction

in wages; and

(4) the individual's normal weekly hours of work and wages have been

reduced as described in paragraph (3) of this subsection (k) for a waiting

period of one week which occurs within the period the shared work plan

is in effect, which period includes the week for which the individual is

claiming shared work benefits.

(l) The secretary shall pay an individual who is eligible for shared

work benefits under this section a weekly shared work benefit amount

equal to the individual's regular weekly benefit amount for a period of

total unemployment multiplied by the nearest full percentage of reduc-

tion of the individual's hours as set forth in the employer's shared work

plan. If the shared benefit amount is not a multiple of $1, the secretary

shall reduce the amount to the next lowest multiple of $1. All shared work

benefits under this section shall be payable from the fund.

(m) The secretary may not pay an individual shared work benefits for

any week in which the individual performs paid work for the participating

employer in excess of the reduced hours established under the shared

work plan.

(n) An individual may not receive shared work benefits and regular

unemployment compensation benefits in an amount that exceeds the

maximum total amount of benefits payable to that individual in a benefit

year as provided by subsection (f) of K.S.A. 44-704 and amendments

thereto.

(o) An individual who has received all of the shared work benefits

and regular unemployment compensation benefits available in a benefit

year is an exhaustee under K.S.A. 44-704a and 44-704b and amendments

thereto and is entitled to receive extended benefits under such statutes

if the individual is otherwise eligible under such statutes.

(p) The secretary may terminate a shared work plan for good cause

if the secretary determines that the shared work plan is not being exe-

cuted according to the terms and intent of the shared work unemploy-

ment compensation program.

(q) Notwithstanding any other provisions of this section, an individual

shall not be eligible to receive shared work benefits for more than 26

calendar weeks during the twelve-month period of the shared work plan,

except that two weeks of additional benefits shall be payable to claimants

who exhaust regular benefits and any benefits under any other federal or

state extended benefits program during the period July 1, 2003 through

June 30, 2004. No week shall be counted as a week for which an individual

is eligible for shared work benefits for the purposes of this section unless

the week occurs within the twelve-month period of the shared work plan.

(r) No shared work benefit payment shall be made under any shared

work plan or this section for any week which commences before April 1,

1989.

(s) This section shall be construed as part of the employment security

law.

Sec. 4. K.S.A. 2002 Supp. 44-710 is hereby amended to read as fol-

lows: 44-710. (a) Payment. Contributions shall accrue and become pay-

able by each contributing employer for each calendar year in which the

contributing employer is subject to the employment security law with

respect to wages paid for employment. Such contributions shall become

due and be paid by each contributing employer to the secretary for the

employment security fund in accordance with such rules and regulations

as the secretary may adopt and shall not be deducted, in whole or in part,

from the wages of individuals in such employer's employ. In the payment

of any contributions, a fractional part of $.01 shall be disregarded unless

it amounts to $.005 or more, in which case it shall be increased to $.01.

Should contributions for any calendar quarter be less than $1, no payment

shall be required.

(b) Rates and base of contributions. (1) Except as provided in para-

graph (2) of this subsection, each contributing employer shall pay contri-

butions on wages paid by the contributing employer during each calendar

year with respect to employment as provided in K.S.A. 44-710a and

amendments thereto.

(2) (A) If the congress of the United States either amends or repeals

the Wagner-Peyser act, the federal unemployment tax act, the federal

social security act, or subtitle C of chapter 23 of the federal internal

revenue code of 1986, or any act or acts supplemental to or in lieu thereof,

or any part or parts of any such law, or if any such law, or any part or

parts thereof, are held invalid with the effect that appropriations of funds

by congress and grants thereof to the state of Kansas for the payment of

costs of administration of the employment security law are no longer

available for such purposes, or (B) if employers in Kansas subject to the

payment of tax under the federal unemployment tax act are granted full

credit against such tax for contributions or taxes paid to the secretary of

human resources, then, and in either such case, beginning with the year

in which the unavailability of federal appropriations and grants for such

purpose occurs or in which such change in liability for payment of such

federal tax occurs and for each year thereafter, the rate of contributions

of each contributing employer shall be equal to the total of .5% and the

rate of contributions as determined for such contributing employer under

K.S.A. 44-710a and amendments thereto. The amount of contributions

which each contributing employer becomes liable to pay under this par-

agraph (2) over the amount of contributions which such contributing em-

ployer would be otherwise liable to pay shall be credited to the employ-

ment security administration fund to be disbursed and paid out under the

same conditions and for the same purposes as other moneys are author-

ized to be paid from the employment security administration fund, except

that, if the secretary determines that as of the first day of January of any

year there is an excess in the employment security administration fund

over the amount required to be disbursed during such year, an amount

equal to such excess as determined by the secretary shall be transferred

to the employment security fund.

(c) Charging of benefit payments. (1) The secretary shall maintain a

separate account for each contributing employer, and shall credit the

contributing employer's account with all the contributions paid on the

contributing employer's own behalf. Nothing in the employment security

law shall be construed to grant any employer or individuals in such em-

ployer's service prior claims or rights to the amounts paid by such em-

ployer into the employment security fund either on such employer's own

behalf or on behalf of such individuals. Benefits paid shall be charged

against the accounts of each base period employer in the proportion that

the base period wages paid to an eligible individual by each such employer

bears to the total wages in the base period. Benefits shall be charged to

contributing employers' accounts and rated governmental employers' ac-

counts upon the basis of benefits paid during each twelve-month period

ending on the computation date.

(2) (A) Benefits paid in benefit years established by valid new claims

shall not be charged to the account of a contributing employer or rated

governmental employer who is a base period employer if the examiner

finds that claimant was separated from the claimant's most recent em-

ployment with such employer under any of the following conditions: (i)

Discharged for misconduct or gross misconduct connected with the in-

dividual's work; or (ii) leaving work voluntarily without good cause attrib-

utable to the claimant's work or the employer.

(B) Where base period wage credits of a contributing employer or

rated governmental employer represent part-time employment and the

claimant continues in that part-time employment with that employer dur-

ing the period for which benefits are paid, then that employer's account

shall not be charged with any part of the benefits paid if the employer

provides the secretary with information as required by rules and regula-

tions. For the purposes of this subsection (c)(2)(B), ``part-time employ-

ment'' means any employment when an individual works concurrently for

two or more employers and also works less than full-time for at least one

of those employers because the individual's services are not required for

the customary, scheduled full-time hours prevailing at the work place or

the individual does not customarily work the regularly scheduled full-time

hours due to personal choice or circumstances.

(C) No contributing employer or rated governmental employer's ac-

count shall be charged with any extended benefits paid in accordance

with the employment security law, except for weeks of unemployment

beginning after December 31, 1978, all contributing governmental em-

ployers and governmental rated employers shall be charged an amount

equal to all extended benefits paid.

(D) No contributing employer, rated governmental employer or re-

imbursing employer's account shall be charged for any additional benefits

paid during the period July 1, 2003 through June 30, 2004.

(D) (E) No contributing employer or rated governmental employer's

account will be charged for benefits paid a claimant while pursuing an

approved training course as defined in subsection (s) of K.S.A. 44-703

and amendments thereto.

(E) (F) No contributing employer or rated governmental employer's

account shall be charged with respect to the benefits paid to any individual

whose base period wages include wages for services not covered by the

employment security law prior to January 1, 1978, to the extent that the

employment security fund is reimbursed for such benefits pursuant to

section 121 of public law 94-566 (90 Stat. 2673).

(F) (G) With respect to weeks of unemployment beginning after De-

cember 31, 1977, wages for insured work shall include wages paid for

previously uncovered services. For the purposes of this subsection

(c)(2)(F), the term ``previously uncovered services'' means services which

were not covered employment, at any time during the one-year period

ending December 31, 1975, except to the extent that assistance under

title II of the federal emergency jobs and unemployment assistance act

of 1974 was paid on the basis of such services, and which:

(i) Are agricultural labor as defined in subsection (w) of K.S.A. 44-

703 and amendments thereto or domestic service as defined in subsection

(aa) of K.S.A. 44-703 and amendments thereto, or

(ii) are services performed by an employee of this state or a political

subdivision thereof, as provided in subsection (i)(3)(E) of K.S.A. 44-703

and amendments thereto, or

(iii) are services performed by an employee of a nonprofit educational

institution which is not an institution of higher education.

(G) No contributing employer or rated governmental employer's ac-

count shall be charged with respect to their pro rata share of benefit

charges if such charges are of $100 or less.

(3) The examiner shall notify any base period employer whose ac-

count will be charged with benefits paid following the filing of a valid

new claim and a determination by the examiner based on all information

relating to the claim contained in the records of the division of employ-

ment. Such notice shall become final and benefits charged to the base

period employer's account in accordance with the claim unless within 10

calendar days from the date the notice was sent, the base period employer

requests in writing that the examiner reconsider the determination and

furnishes any required information in accordance with the secretary's

rules and regulations. In a similar manner, a notice of an additional claim

followed by the first payment of benefits with respect to the benefit year,

filed by an individual during a benefit year after a period in such year

during which such individual was employed, shall be given to any base

period employer of the individual who has requested such a notice within

10 calendar days from the date the notice of the valid new claim was sent

to such base period employer. For purposes of this subsection (c)(3), if

the required information is not submitted or postmarked within a re-

sponse time limit of 10 days after the base period employer notice was

sent, the base period employer shall be deemed to have waived its stand-

ing as a party to the proceedings arising from the claim and shall be barred

from protesting any subsequent decisions about the claim by the secre-

tary, a referee, the board of review or any court, except that the base

period employer's response time limit may be waived or extended by the

examiner or upon appeal, if timely response was impossible due to ex-

cusable neglect. The examiner shall notify the employer of the reconsid-

ered determination which shall be subject to appeal, or further reconsid-

eration, in accordance with the provisions of K.S.A. 44-709 and

amendments thereto.

(4) Time, computation and extension. In computing the period of

time for a base period employer response or appeals under this section

from the examiner's or the special examiner's determination or from the

referee's decision, the day of the act, event or default from which the

designated period of time begins to run shall not be included. The last

day of the period shall be included unless it is a Saturday, Sunday or legal

holiday, in which event the period runs until the end of the next day

which is not a Saturday, Sunday or legal holiday.

(d) Pooled fund. All contributions and payments in lieu of contribu-

tions and benefit cost payments to the employment security fund shall

be pooled and available to pay benefits to any individual entitled thereto

under the employment security law, regardless of the source of such con-

tributions or payments in lieu of contributions or benefit cost payments.

(e) Election to become reimbursing employer; payment in lieu of con-

tributions. (1) Any governmental entity, Indian tribes or tribal units, (sub-

divisions, subsidiaries or business enterprises wholly owned by such In-

dian tribes), for which services are performed as described in subsection

(i)(3)(E) of K.S.A. 44-703 and amendments thereto or any nonprofit or-

ganization or group of nonprofit organizations described in section

501(c)(3) of the federal internal revenue code of 1986 which is exempt

from income tax under section 501(a) of such code, that becomes subject

to the employment security law may elect to become a reimbursing em-

ployer under this subsection (e)(1) and agree to pay the secretary for the

employment security fund an amount equal to the amount of regular

benefits and 1/2 of the extended benefits paid that are attributable to

service in the employ of such reimbursing employer, except that each

reimbursing governmental employer, Indian tribes or tribal units shall

pay an amount equal to the amount of regular benefits and extended

benefits paid for weeks of unemployment beginning after December 31,

1978, for governmental employers and December 21, 2000, for Indian

tribes or tribal units to individuals for weeks of unemployment which

begin during the effective period of such election.

(A) Any employer identified in this subsection (e)(1) may elect to

become a reimbursing employer for a period encompassing not less than

four complete calendar years if such employer files with the secretary a

written notice of such election within the thirty-day period immediately

following January 1 of any calendar year or within the thirty-day period

immediately following the date on which a determination of subjectivity

to the employment security law is issued, whichever occurs later.

(B) Any employer which makes an election to become a reimbursing

employer in accordance with subparagraph (A) of this subsection (e)(1)

will continue to be liable for payments in lieu of contributions until such

employer files with the secretary a written notice terminating its election

not later than 30 days prior to the beginning of the calendar year for

which such termination shall first be effective.

(C) Any employer identified in this subsection (e)(1) which has re-

mained a contributing employer and has been paying contributions under

the employment security law for a period subsequent to January 1, 1972,

may change to a reimbursing employer by filing with the secretary not

later than 30 days prior to the beginning of any calendar year a written

notice of election to become a reimbursing employer. Such election shall

not be terminable by the employer for four complete calendar years.

(D) The secretary may for good cause extend the period within which

a notice of election, or a notice of termination, must be filed and may

permit an election to be retroactive but not any earlier than with respect

to benefits paid after January 1 of the year such election is received.

(E) The secretary, in accordance with such rules and regulations as

the secretary may adopt, shall notify each employer identified in subsec-

tion (e)(1) of any determination which the secretary may make of its status

as an employer and of the effective date of any election which it makes

to become a reimbursing employer and of any termination of such elec-

tion. Such determinations shall be subject to reconsideration, appeal and

review in accordance with the provisions of K.S.A. 44-710b and amend-

ments thereto.

(2) Reimbursement reports and payments. Payments in lieu of con-

tributions shall be made in accordance with the provisions of paragraph

(A) of this subsection (e)(2) by all reimbursing employers except the state

of Kansas. Each reimbursing employer shall report total wages paid dur-

ing each calendar quarter by filing quarterly wage reports with the sec-

retary which shall be filed by the last day of the month following the close

of each calendar quarter. Wage reports are deemed filed as of the date

they are placed in the United States mail.

(A) At the end of each calendar quarter, or at the end of any other

period as determined by the secretary, the secretary shall bill each re-

imbursing employer, except the state of Kansas, (i) an amount to be paid

which is equal to the full amount of regular benefits plus 1/2 of the amount

of extended benefits paid during such quarter or other prescribed period

that is attributable to service in the employ of such reimbursing employer;

and (ii) for weeks of unemployment beginning after December 31, 1978,

each reimbursing governmental employer and December 21, 2000, for

Indian tribes or tribal units shall be certified an amount to be paid which

is equal to the full amount of regular benefits and extended benefits paid

during such quarter or other prescribed period that is attributable to

service in the employ of such reimbursing governmental employer.

(B) Payment of any bill rendered under paragraph (A) of this sub-

section (e)(2) shall be made not later than 30 days after such bill was

mailed to the last known address of the reimbursing employer, or oth-

erwise was delivered to such reimbursing employer, unless there has been

an application for review and redetermination in accordance with para-

graph (D) of this subsection (e)(2).

(C) Payments made by any reimbursing employer under the provi-

sions of this subsection (e)(2) shall not be deducted or deductible, in

whole or in part, from the remuneration of individuals in the employ of

such employer.

(D) The amount due specified in any bill from the secretary shall be

conclusive on the reimbursing employer, unless, not later than 15 days

after the bill was mailed to the last known address of such employer, or

was otherwise delivered to such employer, the reimbursing employer files

an application for redetermination in accordance with K.S.A. 44-710b and

amendments thereto.

(E) Past due payments of amounts certified by the secretary under

this section shall be subject to the same interest, penalties and actions

required by K.S.A. 44-717 and amendments thereto. (1) If any nonprofit

organization or group of nonprofit organizations described in section

501(c)(3) of the federal internal revenue code of 1986 or governmental

reimbursing employer is delinquent in making payments of amounts cer-

tified by the secretary under this section, the secretary may terminate

such employer's election to make payments in lieu of contributions as of

the beginning of the next calendar year and such termination shall be

effective for such next calendar year and the calendar year thereafter so

that the termination is effective for two complete calendar years. (2) Fail-

ure of the Indian tribe or tribal unit to make required payments, including

assessment of interest and penalty within 90 days of receipt of the bill

will cause the Indian tribe to lose the option to make payments in lieu of

contributions as described pursuant to paragraph (e)(1) for the following

tax year unless payment in full is received before contribution rates for

the next tax year are calculated. (3) Any Indian tribe that loses the option

to make payments in lieu of contributions due to late payment or non-

payment, as described in paragraph (2), shall have such option reinstated,

if after a period of one year, all contributions have been made on time

and no contributions, payments in lieu of contributions for benefits paid,

penalties or interest remain outstanding.

(F) Failure of the Indian tribe or any tribal unit thereof to make

required payments, including assessments of interest and penalties, after

all collection activities deemed necessary by the secretary have been ex-

hausted, will cause services performed by such tribe to not be treated as

employment for purposes of subsection (i)(3)(E) of K.S.A. 44-703 and

amendments thereto. If an Indian tribe fails to make payments required

under this section, including assessments of interest and penalties, within

90 days of a final notice of delinquency, the secretary shall immediately

notify the United States internal revenue service and the United States

department of labor. The secretary may determine that any Indian tribe

that loses coverage pursuant to this paragraph may have services per-

formed on behalf of such tribe again deemed ``employment'' if all con-

tributions, payments in lieu of contributions, penalties and interest have

been paid.

(G) In the discretion of the secretary, any employer who elects to

become liable for payments in lieu of contributions and any nonprofit

organization or group of nonprofit organizations described in section 501

(c)(3) of the federal internal revenue code of 1986 or governmental re-

imbursing employer or Indian tribe or tribal unit who is delinquent in

filing reports or in making payments of amounts certified by the secretary

under this section shall be required within 60 days after the effective date

of such election, in the case of an eligible employer so electing, or after

the date of notification to the delinquent employer under this subsection

(e)(2)(G), in the case of a delinquent employer, to execute and file with

the secretary a surety bond, except that the employer may elect, in lieu

of a surety bond, to deposit with the secretary money or securities as

approved by the secretary or to purchase and deliver to an escrow agent

a certificate of deposit to guarantee payment. The amount of the bond,

deposit or escrow agreement required by this subsection (e)(2)(G) shall

not exceed 5.4% of the organization's taxable wages paid for employment

by the eligible employer during the four calendar quarters immediately

preceding the effective date of the election or the date of notification, in

the case of a delinquent employer. If the employer did not pay wages in

each of such four calendar quarters, the amount of the bond or deposit

shall be as determined by the secretary. Upon the failure of an employer

to comply with this subsection (e)(2)(G) within the time limits imposed

or to maintain the required bond or deposit, the secretary may terminate

the election of such eligible employer or delinquent employer, as the case

may be, to make payments in lieu of contributions, and such termination

shall be effective for the current and next calendar year.

(H) The state of Kansas shall make reimbursement payments quar-

terly at a fiscal year rate which shall be based upon: (i) The available

balance in the state's reimbursing account as of December 31 of each

calendar year; (ii) the historical unemployment experience of all covered

state agencies during prior years; (iii) the estimate of total covered wages

to be paid during the ensuing calendar year; (iv) the applicable fiscal year

rate of the claims processing and auditing fee under K.S.A. 75-3798 and

amendments thereto; and (v) actuarial and other information furnished

to the secretary by the secretary of administration. In accordance with

K.S.A. 75-3798 and amendments thereto, the claims processing and au-

diting fees charged to state agencies shall be deducted from the amounts

collected for the reimbursement payments under this paragraph (H) prior

to making the quarterly reimbursement payments for the state of Kansas.

The fiscal year rate shall be expressed as a percentage of covered total

wages and shall be the same for all covered state agencies. The fiscal year

rate for each fiscal year will be certified in writing by the secretary to the

secretary of administration on July 15 of each year and such certified rate

shall become effective on the July 1 immediately following the date of

certification. A detailed listing of benefit charges applicable to the state's

reimbursing account shall be furnished quarterly by the secretary to the

secretary of administration and the total amount of charges deducted

from previous reimbursing payments made by the state. On January 1 of

each year, if it is determined that benefit charges exceed the amount of

prior reimbursing payments, an upward adjustment shall be made there-

for in the fiscal year rate which will be certified on the ensuing July 15.

If total payments exceed benefit charges, all or part of the excess may be

refunded, at the discretion of the secretary, from the fund or retained in

the fund as part of the payments which may be required for the next fiscal

year.

(3) Allocation of benefit costs. The reimbursing account of each re-

imbursing employer shall be charged the full amount of regular benefits

and 1/2 of the amount of extended benefits paid except that each reim-

bursing governmental employer's account shall be charged the full

amount of regular benefits and extended benefits paid for weeks of un-

employment beginning after December 31, 1978, to individuals whose

entire base period wage credits are from such employer. When benefits

received by an individual are based upon base period wage credits from

more than one employer then the reimbursing employer's or reimbursing

governmental employer's account shall be charged in the same ratio as

base period wage credits from such employer bear to the individual's total

base period wage credits. Notwithstanding any other provision of the

employment security law, no reimbursing employer's or reimbursing gov-

ernmental employer's account shall be charged for payments of extended

benefits which are wholly reimbursed to the state by the federal govern-

ment.

(A) Proportionate allocation (when fewer than all reimbursing base

period employers are liable). If benefits paid to an individual are based

on wages paid by one or more reimbursing employers and on wages paid

by one or more contributing employers or rated governmental employers,

the amount of benefits payable by each reimbursing employer shall be

an amount which bears the same ratio to the total benefits paid to the

individual as the total base period wages paid to the individual by such

employer bears to the total base period wages paid to the individual by

all of such individual's base period employers.

(B) Proportionate allocation (when all base period employers are re-

imbursing employers). If benefits paid to an individual are based on wages

paid by two or more reimbursing employers, the amount of benefits pay-

able by each such employer shall be an amount which bears the same

ratio to the total benefits paid to the individual as the total base period

wages paid to the individual by such employer bear to the total base

period wages paid to the individual by all of such individual's base period

employers.

(4) Group accounts. Two or more reimbursing employers may file a

joint application to the secretary for the establishment of a group account

for the purpose of sharing the cost of benefits paid that are attributable

to service in the employment of such reimbursing employers. Each such

application shall identify and authorize a group representative to act as

the group's agent for the purposes of this subsection (e)(4). Upon ap-

proval of the application, the secretary shall establish a group account for

such employers effective as of the beginning of the calendar quarter in

which the secretary receives the application and shall notify the group's

representative of the effective date of the account. Such account shall

remain in effect for not less than four years and thereafter such account

shall remain in effect until terminated at the discretion of the secretary

or upon application by the group. Upon establishment of the account,

each member of the group shall be liable for payments in lieu of contri-

butions with respect to each calendar quarter in the amount that bears

the same ratio to the total benefits paid in such quarter that are attrib-

utable to service performed in the employ of all members of the group

as the total wages paid for service in employment by such member in

such quarter bear to the total wages paid during such quarter for service

performed in the employ of all members of the group. The secretary shall

adopt such rules and regulations as the secretary deems necessary with

respect to applications for establishment, maintenance and termination

of group accounts that are authorized by this subsection (e)(4), for ad-

dition of new members to, and withdrawal of active members from such

accounts, and for the determination of the amounts that are payable un-

der this subsection (e)(4) by members of the group and the time and

manner of such payments.

New Sec. 5. Two weeks of additional benefits shall be payable to

claimants who exhaust regular benefits and any benefits under any other

federal or state extended benefits program during the period July 1, 2003

through June 30, 2004. The benefit eligibility and disqualification provi-

sions of K.S.A. 44-705 and 44-706, and amendments thereto, shall apply

to the additional benefits program.

Sec. 6. K.S.A. 2002 Supp. 44-703 is hereby amended to read as fol-

lows: 44-703. As used in this act, unless the context clearly requires oth-

erwise:

(a) (1) ``Annual payroll'' means the total amount of wages paid or

payable by an employer during the calendar year.

(2) ``Average annual payroll'' means the average of the annual payrolls

of any employer for the last three calendar years immediately preceding

the computation date as hereinafter defined if the employer has been

continuously subject to contributions during those three calendar years

and has paid some wages for employment during each of such years. In

determining contribution rates for the calendar year, if an employer has

not been continuously subject to contribution for the three calendar years

immediately preceding the computation date but has paid wages subject

to contributions during only the two calendar years immediately preced-

ing the computation date, such employer's ``average annual payroll'' shall

be the average of the payrolls for those two calendar years.

(3) ``Total wages'' means the total amount of wages paid or payable

by an employer during the calendar year, including that part of remu-

neration in 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 completed cal-

endar quarters immediately preceding the first day of an individual's ben-

efit year, except that the base period in respect to combined wage claims

means the base period as defined in the law of the paying state.

(1) If an individual lacks sufficient base period wages in order to es-

tablish a benefit year in the matter set forth above and satisfies the

requirements 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 al-

ternative base period substituted for the current base period so as not to

prevent establishment of a valid claim. For the purposes of this subsec-

tion, ``alternative base period'' means the last four completed quarters

immediately preceding the date the qualifying injury occurred. In the

event the wages in the alternative base period have been used on a prior

claim, then they shall be excluded from the new alternative base period.

(2) For the purposes of this chapter, the term ``base period'' includes

the alternative base period.

(c) (1) ``Benefits'' means the money payments payable to an individ-

ual, as provided in this act, with respect to such individual's unemploy-

ment.

(2) ``Regular benefits'' means benefits payable to an individual under

this act or under any other state law, including benefits payable to federal

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 period

beginning with the first day of the first week for which such individual

files a valid claim for benefits, and such benefit year shall continue for

one full year. In the case of a combined wage claim, the benefit year shall

be the benefit year of the paying state. Following the termination of a

benefit year, a subsequent benefit year shall commence on the first day

of the first week with respect to which an individual next files a claim for

benefits. When such filing occurs with respect to a week which overlaps

the preceding benefit year, the subsequent benefit year shall commence

on the first day immediately following the expiration date of the preceding

benefit year. Any claim for benefits made in accordance with subsection

(a) of K.S.A. 44-709 and amendments thereto shall be deemed to be a

``valid claim'' for the purposes of this subsection if the individual has been

paid wages for insured work as required under subsection (e) of K.S.A.

44-705 and amendments thereto. Whenever a week of unemployment

overlaps two benefit years, such week shall, for the purpose of granting

waiting-period credit or benefit payment with respect thereto, be deemed

to be a week of unemployment within that benefit year in which the

greater part of such week occurs.

(e) ``Commissioner'' or ``secretary'' means the secretary of human re-

sources.

(f) (1) ``Contributions'' means the money payments to the state em-

ployment security fund which are required to be made by employers on

account of employment under K.S.A. 44-710 and amendments thereto,

and voluntary payments made by employers pursuant to such statute.

(2) ``Payments in lieu of contributions'' means the money payments

to the state employment security fund from employers which are required

to make 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, agency

or department of the state of Kansas and political subdivisions thereof,

trust, estate, joint-stock company, insurance company or corporation,

whether domestic or foreign including nonprofit corporations, or the re-

ceiver, trustee in bankruptcy, trustee or successor thereof, or the legal

representatives of a deceased person, which has in its employ one or more

individuals performing services for it within this state. All individuals per-

forming services within this state for any employing unit which maintains

two or more separate establishments within this state shall be deemed to

be employed by a single employing unit for all the purposes of this act.

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 act, whether

such individual was hired or paid directly by such employing unit or by

such agent or employee, provided the employing unit had actual or con-

structive knowledge of the employment.

(h) ``Employer'' means:

(1) (A) Any employing unit for which agricultural labor as defined in

subsection (w) of this section is performed and which during any calendar

quarter in either the current or preceding calendar year paid remunera-

tion in cash of $20,000 or more to individuals employed in agricultural

labor or for some portion of a day in each of 20 different calendar weeks,

whether or not such weeks were consecutive, in either the current or the

preceding calendar year, employed in agricultural labor 10 or more in-

dividuals, regardless of whether they were employed at the same moment

of time.

(B) For the purpose of this subsection (h)(1), any individual who is a

member of a crew furnished by a crew leader to perform service in ag-

ricultural labor for any other person shall be treated as an employee of

such crew leader if:

(i) Such crew leader holds a valid certificate of registration under the

federal migrant and seasonal agricultural workers protection act or sub-

stantially all the members of such crew operate or maintain tractors,

mechanized harvesting or cropdusting equipment or any other mecha-

nized equipment, which is provided by such crew leader; and

(ii) such individual is not in the employment of such other person

within the meaning of subsection (i) of this section.

(C) For the purpose of this subsection (h)(1), in the case of any in-

dividual who is furnished by a crew leader to perform service in agricul-

tural labor for any other person and who is not treated as an employee

of such crew leader:

(i) Such other person and not the crew leader shall be treated as the

employer of such individual; and

(ii) such other person shall be treated as having paid cash remuner-

ation to such individual in an amount equal to the amount of cash re-

muneration paid to such individual by the crew leader, either on the crew

leader's own behalf or on behalf of such other person, for the service in

agricultural labor performed for such other person.

(D) For the purposes of this subsection (h)(1) ``crew leader'' means

an individual who:

(i) Furnishes individuals to perform service in agricultural labor for

any other person;

(ii) pays, either on such individual's own behalf or on behalf of such

other person, the individuals so furnished by such individual for the serv-

ice in agricultural labor performed by them; and

(iii) has not entered into a written agreement with such other person

under which such individual is designated as an employee of such other

person.

(2) (A) Any employing unit which: (i) In any calendar quarter in ei-

ther the current or preceding calendar year paid for service in employ-

ment 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 consec-

utive, in either the current or preceding calendar year, had in employment

at least one individual, whether or not the same individual was in em-

ployment in each such day.

(B) Employment of individuals to perform domestic service or agri-

cultural labor and wages paid for such service or labor shall not be con-

sidered in determining whether an employing unit meets the criteria of

this subsection (h)(2).

(3) Any employing unit for which service is employment as defined

in subsection (i)(3)(E) of this section.

(4) (A) Any employing unit, whether or not it is an employing unit

under subsection (g) of this section, which acquires or in any manner

succeeds to (i) substantially all of the employing enterprises, organization,

trade or business, or (ii) substantially all the assets, of another employing

unit which at the time of such acquisition was an employer subject to this

act;

(B) any employing unit which is controlled substantially, either di-

rectly or indirectly by legally enforceable means or otherwise, by the same

interest or interests, whether or not such interest or interests are an em-

ploying unit under subsection (g) of this section, which acquires or in any

manner succeeds to a portion of an employer's annual payroll, which is

less than 100% of such employer's annual payroll, and which intends to

continue the acquired portion as a going business.

(5) Any employing unit which paid cash remuneration of $1,000 or

more in any calendar quarter in the current or preceding calendar year

to individuals employed in domestic service as defined in subsection (aa)

of this section.

(6) Any employing unit which having become an employer under this

subsection (h) has not, under subsection (b) of K.S.A. 44-711 and amend-

ments thereto, ceased to be an employer subject to this act.

(7) Any employing unit which has elected to become fully subject to

this act in accordance with subsection (c) of K.S.A. 44-711 and amend-

ments thereto.

(8) Any employing unit not an employer by reason of any other par-

agraph of this subsection (h), for which within either the current or pre-

ceding calendar year services in employment are or were performed with

respect to which such employing unit is liable for any federal tax against

which credit may be taken for contributions required to be paid into a

state unemployment compensation fund; or which, as a condition for ap-

proval of this act for full tax credit against the tax imposed by the federal

unemployment tax act, is required, pursuant to such act, to be an ``em-

ployer'' under this act.

(9) Any employing unit described in section 501(c)(3) of the federal

internal revenue code of 1986 which is exempt from income tax under

section 501(a) of the code that had four or more individuals in employ-

ment 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.

(i) ``Employment'' means:

(1) Subject to the other provisions of this subsection, service, includ-

ing service in interstate commerce, performed by

(A) Any active officer of a corporation; or

(B) any individual who, under the usual common law rules applicable

in determining the employer-employee relationship, has the status of an

employee; or

(C) any individual other than an individual who is an employee under

subsection (i)(1)(A) or subsection (i)(1)(B) above 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, bev-

erages (other than milk), or laundry or dry-cleaning services, for such

individual's principal; or

(ii) as a traveling or city salesman, 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, a principal (except for side-line 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.

For purposes of subsection (i)(1)(D), the term ``employment'' shall in-

clude services described in paragraphs (i) and (ii) above only if:

(a) The contract of service contemplates that substantially all of the

services are to be performed personally by such individual;

(b) 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

(c) 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.

(2) The term ``employment'' shall include an individual's entire serv-

ice within the United States, even though performed entirely outside this

state if,

(A) The service is not localized in any state, and

(B) the individual is one of a class of employees who are required to

travel outside this state in performance of their duties, and

(C) the individual's base of operations is in this state, or if there is no

base of operations, then the place from which service is directed or con-

trolled is in this state.

(3) The term ``employment'' shall also include:

(A) Services performed within this state but not covered by the pro-

visions of subsection (i)(1) or subsection (i)(2) shall be deemed to be

employment subject to this act if contributions are not required and paid

with respect to such services under an unemployment compensation law

of any other state or of the federal government.

(B) Services performed entirely without this state, with respect to no

part of which contributions are required and paid under an unemploy-

ment compensation law of any other state or of the federal government,

shall be deemed to be employment subject to this act only if the individual

performing such services is a resident of this state and the secretary ap-

proved the election of the employing unit for whom such services are

performed that the entire service of such individual shall be deemed to

be employment subject to this act.

(C) Services covered by an arrangement pursuant to subsection (l) of

K.S.A. 44-714 and amendments thereto between the secretary and the

agency charged with the administration of any other state or federal un-

employment compensation law, pursuant to which all services performed

by an individual for an employing unit are deemed to be performed en-

tirely within this state, shall be deemed to be employment if the secretary

has approved an election of the employing unit for whom such services

are performed, pursuant to which the entire service of such individual

during the period covered by such election is deemed to be insured work.

(D) Services performed by an individual for wages or under any con-

tract of hire shall be deemed to be employment subject to this act unless

and until it is shown to the satisfaction of the secretary that: (i) Such

individual has been and will continue to be free from control or direction

over the performance of such services, both under the individual's con-

tract of hire and in fact; and (ii) such service is either outside the usual

course of the business for which such service is performed or that such

service is performed outside of all the places of business of the enterprise

for which such service is performed.

(E) Service performed by an individual in the employ of this state or

any instrumentality thereof, any political subdivision of this state or any

instrumentality thereof, or in the employ of an Indian tribe, as defined

pursuant to section 3306(u) of the federal unemployment tax act, any

instrumentality of more than one of the foregoing or any instrumentality

which is jointly owned by this state or a political subdivision thereof or

Indian tribes and one or more other states or political subdivisions of this

or other states, provided that such service is excluded from ``employment''

as defined in the federal unemployment tax act by reason of section

3306(c)(7) of that act and is not excluded from ``employment'' under

subsection (i)(4)(A) of this section. For purposes of this section, the ex-

clusions from employment in subsections (i)(4)(A) and (i)(4)(L) shall also

be applicable to services performed in the employ 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 the

term ``employment'' as defined in the federal unemployment tax act solely

by reason of section 3306(c)(8) of that act, and is not excluded from

employment under paragraphs (I) through (M) of subsection (i)(4).

(G) The term ``employment'' shall include the service of an individual

who is a citizen of the United States, performed outside the United States

except in Canada, in the employ of an American employer (other than

service which is deemed ``employment'' under the provisions of subsec-

tion (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 States is

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 laws

of this state; or

(C) the employer is a partnership or a trust and the number of the

partners or trustees who are residents of this state is greater than the

number who are residents of any other state; or

(iii) none of the criteria of paragraphs (i) and (ii) above of this sub-

section (i)(3)(G) are 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.

(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 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.

(I) Notwithstanding subsection (i)(2) of this section, all service per-

formed by an officer or member of the crew of an American vessel or

American aircraft on or in connection with such vessel or aircraft, if the

operating office, from which the operations of such vessel or aircraft op-

erating within, or within and without, the United States are ordinarily and

regularly supervised, managed, directed and controlled is within this state.

(J) Notwithstanding any other provisions of this subsection (i), 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 contributions re-

quired to be paid into a state unemployment compensation 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 act.

(K) 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 in any calendar quarter in the

current calendar year or the preceding calendar year to individuals em-

ployed in such domestic service.

(4) The term ``employment'' shall not include: (A) Service performed

in the employ of an employer specified in subsection (h)(3) of this section

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, political subdivision or of an Indian 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 or

tribal law, is designated as a major nontenured policymaking or advisory

position or as a policymaking or advisory position the performance of the

duties of which ordinarily does not require more than eight hours per

week;

(B) service with respect to which unemployment compensation is

payable under an unemployment compensation system established by an

act of congress;

(C) service performed by an individual in the employ of such indi-

vidual's son, daughter or spouse, and service performed by a child under

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 govern-

ment or an instrumentality of the United States exempt under the con-

stitution of the United States from the contributions imposed by this act,

except that to the extent that the congress of the United States shall

permit states to require any instrumentality of the United States to make

payments into an unemployment fund under a state unemployment com-

pensation law, all of the provisions of this act shall be applicable to such

instrumentalities, and to services performed for such instrumentalities, in

the same manner, to the same extent and on the same terms as to all

other employers, employing units, individuals and services. If this state

shall not be certified for any year by the federal security agency under

section 3304(c) of the federal internal revenue code of 1986, the payments

required of such instrumentalities with respect to such year shall be re-

funded by the secretary from the fund in the same manner and within

the same period as is provided in subsection (f) of K.S.A. 44-717 and

amendments thereto with respect to contributions erroneously collected;

(E) service covered by an arrangement between the secretary and

the agency charged with the administration of any other state or federal

unemployment compensation law pursuant to which all services per-

formed by an individual for an employing unit during the period covered

by such employing unit's duly approved election, are deemed to be per-

formed entirely within the jurisdiction of such other state or federal

agency;

(F) service performed by an individual under the age of 18 in the

delivery or distribution of newspapers or shopping news, not including

delivery or distribution to any point for subsequent delivery or distribu-

tion;

(G) service performed by an individual for an employing unit as an

insurance agent or as an insurance solicitor, if all such service performed

by such individual for such employing unit is performed for remuneration

solely by way of commission;

(H) service performed in any calendar quarter in the employ of any

organization exempt from income tax under section 501(a) of the federal

internal revenue code of 1986 (other than an organization described in

section 401(a) or under section 521 of such code) if the remuneration for

such service is less than $50. In construing the application of the term

``employment,'' if services performed during 1/2 or more of any pay period

by an individual for the person employing such individual constitute em-

ployment, all the services of such individual for such period shall be

deemed to be employment; but if the services performed during more

than 1/2 of any such pay period by an individual for the person employing

such individual do not constitute employment, then none of the services

of such individual for such period shall be deemed to be employment. As

used in this subsection (i)(4)(H) the term ``pay period'' means a period

(of not more than 31 consecutive days) for which a payment of remuner-

ation is ordinarily made to the individual by the person employing such

individual. This subsection (i)(4)(H) shall not be applicable with respect

to services with respect to which unemployment compensation is payable

under an unemployment compensation system established by an act of

congress;

(I) services performed in the employ of a church or convention or

association of churches, or 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;

(J) service performed by a duly ordained, commissioned, or licensed

minister of a church in the exercise of such individual's ministry or by a

member of a religious order in the exercise of duties required by such

order;

(K) service performed in a facility conducted for the purpose of car-

rying out a program of:

(i) Rehabilitation for individuals whose earning capacity is impaired

by age or physical or mental deficiency or injury, or

(ii) providing remunerative work for individuals who because of their

impaired physical or mental capacity cannot be readily absorbed in the

competitive labor market, by an individual receiving such rehabilitation

or remunerative work;

(L) service performed as part of an employment 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 or of an

Indian tribe, by an individual receiving such work relief or work training;

(M) service performed by an inmate of a custodial or correctional

institution, unless such service is performed for a private, for-profit em-

ployer;

(N) service performed, in the employ of a school, college, or univer-

sity, if such service is performed by a student who is enrolled and is

regularly attending classes at such school, college or university;

(O) service performed by an individual who is enrolled at a nonprofit

or public educational institution which normally maintains a regular fac-

ulty and curriculum and normally has a regularly organized body of stu-

dents 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 serv-

ice is an integral part of such program, and such institution has so certified

to the employer, except that this subsection (i)(4)(O) shall not apply to

service performed in a program established for or on behalf of an em-

ployer or group of employers;

(P) service performed in the employ of a hospital licensed, certified

or approved by the secretary of health and environment, if such service

is performed by a patient of the hospital;

(Q) services performed as a qualified real estate agent. As used in

this subsection (i)(4)(Q) the term ``qualified real estate agent'' means any

individual who is licensed by the Kansas real estate commission as a sa-

lesperson under the real estate brokers' and salespersons' license act and

for whom:

(i) Substantially all of the remuneration, whether or not paid in cash,

for the services performed by such individual as a real estate salesperson

is directly related to sales or other output, including the performance of

services, rather than to the number of hours worked; and

(ii) the services performed by the individual are performed pursuant

to a written contract between such individual and the person for whom

the services are performed and such contract provides that the individual

will not be treated as an employee with respect to such services for state

tax purposes;

(R) services performed for an employer by an extra in connection

with any phase of motion picture or television production or television

commercials for less than 14 days during any calendar year. As used in

this subsection, the term ``extra'' means an individual who pantomimes in

the background, adds atmosphere to the set and performs such actions

without speaking and ``employer'' shall not include any employer which

is a governmental entity or any employer described in section 501(c)(3)

of the federal internal revenue code 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 in

this subsection (i)(4)(S), ``oil and gas contract pumper'' means a person

performing pumping and other services on one or more oil or gas leases,

or on both oil and gas leases, relating to the operation and maintenance

of such oil and gas leases, on a contractual basis for the operators of such

oil and gas leases and ``services'' shall not include services performed for

a governmental entity or any organization described in section 501(c)(3)

of the federal internal revenue code of 1986 which is exempt from income

taxation under section 501(a) of the code;

(T) service not in the course of the employer's trade or business per-

formed in any calendar quarter by an employee, unless the cash remu-

neration paid for such service is $200 or more and such service is per-

formed by an individual who is regularly employed by such employer to

perform such service. For purposes of this paragraph, an individual shall

be deemed to be regularly employed by an employer during a calendar

quarter only if:

(i) On each of some 24 days during such quarter such individual per-

forms for such employer for some portion of the day service not in the

course of the employer's trade or business, or

(ii) such individual was regularly employed, as determined under sub-

paragraph (i), by such employer in the performance of such service during

the preceding calendar quarter.

Such excluded service shall not include any services performed for an

employer which is a governmental entity or any employer described in

section 501(c)(3) of the federal internal revenue code of 1986 which is

exempt from income taxation under section 501(a) of the code;

(U) service which is performed by any person who is a member of a

limited liability company and which is performed as a member or manager

of that limited liability 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 or soliciting the sale

of consumer products to any buyer on a buy-sell basis or a deposit-com-

mission basis for resale, by the buyer or any other person, in the home

or otherwise rather than in a permanent retail establishment; or

(b) is engaged in the trade or business of selling or soliciting the sale

of consumer products in the home or otherwise than in a permanent retail

establishment;

(ii) substantially all the remuneration whether or not paid in cash for

the performance of the services described in subparagraph (i) is directly

related to sales or other output including the performance of services

rather than to the number of hours worked;

(iii) the services performed by the person are performed pursuant to

a written contract between such person and the person for whom the

services are performed and such contract provides that the person will

not 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

a solicitation made by telephone, mail, or other telecommunications

method, or other nonpersonal method does not satisfy the requirements

of this subsection; and

(W) service performed as an election official or election worker, if

the amount of remuneration received by the individual during the cal-

endar year for services as an election official or election worker is less

than $1,000.; and

(X) service performed by agricultural workers who are aliens admit-

ted to the United States to perform labor pursuant to section 1101

(a)(15)(H)(ii)(a) of the immigration and nationality act.

(j) ``Employment office'' means any office operated by this state and

maintained by the secretary of human resources for the purpose of as-

sisting persons to become employed.

(k) ``Fund'' means the employment security fund established by this

act, to which all contributions and reimbursement payments required and

from which all benefits provided under this act shall be paid and including

all money received from the federal government as reimbursements pur-

suant to section 204 of the federal-state extended compensation act of

1970, and amendments thereto.

(l) ``State'' includes, in addition to the states of the United States of

America, any dependency of the United States, the Commonwealth of

Puerto Rico, the District of Columbia and the Virgin Islands.

(m) ``Unemployment.'' An individual shall be deemed ``unemployed''

with respect to any week during which such individual performs no serv-

ices and with respect to which no wages are payable to such individual,

or with respect to any week of less than full-time work if the wages payable

to such individual with respect to such week are less than such individual's

weekly benefit amount.

(n) ``Employment security administration fund'' means the fund es-

tablished by this act, from which administrative expenses under this act

shall be paid.

(o) ``Wages'' means all compensation for services, including commis-

sions, bonuses, back pay and the cash value of all remuneration, including

benefits, paid in any medium other than cash. The reasonable cash value

of remuneration in any medium other than cash, shall be estimated and

determined in accordance with rules and regulations prescribed by the

secretary. Compensation payable to an individual which has not been

actually received by that individual within 21 days after the end of the

pay period in which the compensation was earned shall be considered to

have been paid on the 21st day after the end of that pay period. Effective

January 1, 1986, gratuities, including tips received from persons other

than the employing unit, shall be considered wages when reported in

writing to the employer by the employee. Employees must furnish a writ-

ten statement to the employer, reporting all tips received if they total $20

or more for a calendar month whether the tips are received directly from

a person other than the employer or are paid over to the employee by

the employer. This includes amounts designated as tips by a customer

who uses a credit card to pay the bill. Notwithstanding the other provi-

sions of this subsection (o), wages paid in back pay awards or settlements

shall be allocated to the week or weeks and reported in the manner as

specified in the award or agreement, or, in the absence of such specificity

in the award or agreement, such wages shall be allocated to the week or

weeks in which such wages, in the judgment of the secretary, would have

been paid. The term ``wages'' shall not include:

(1) That part of the remuneration which has been paid in a calendar

year to an individual by an employer or such employer's predecessor in

excess of $3,000 for all calendar years prior to 1972, $4,200 for the cal-

endar years 1972 to 1977, inclusive, $6,000 for calendar years 1978 to

1982, inclusive, $7,000 for the calendar year 1983, and $8,000 with re-

spect to employment during any calendar year following 1983, except that

if the definition of the term ``wages'' as contained in the federal unem-

ployment tax act is amended to include remuneration in excess of $8,000

paid to an individual by an employer under the federal act during any

calendar year, wages shall include remuneration paid in a calendar year

to an individual by an employer subject to this act or such employer's

predecessor with respect to employment during any calendar year up to

an amount equal to the dollar limitation specified in the federal unem-

ployment tax act. For the purposes of this subsection (o)(1), the term

``employment'' shall include service constituting employment under any

employment security law of another state or of the federal government;

(2) the amount of any payment (including any amount paid by an

employing unit for insurance or annuities, or into a fund, to provide for

any such payment) made to, or on behalf of, an employee or any of such

employee's dependents under a plan or system established by an em-

ployer which makes provisions for employees generally, for a class or

classes of employees or for such employees or a class or classes of em-

ployees and their dependents, on account of (A) sickness or accident

disability, except in the case of any payment made to an employee or such

employee's dependents, this subparagraph shall exclude from the term

``wages'' only payments which are received under a workers compensation

law. Any third party which makes a payment included as wages by reason

of this subparagraph (2)(A) shall be treated as the employer with respect

to such wages, or (B) medical and hospitalization expenses in connection

with sickness or accident disability, or (C) death;

(3) any payment on account of sickness or accident disability, or med-

ical or hospitalization expenses in connection with sickness or accident

disability, made by an employer to, or on behalf of, an employee after the

expiration of six calendar months following the last calendar month in

which the employee worked for such employer;

(4) any payment made to, or on behalf of, an employee or such em-

ployee's beneficiary:

(A) From or to a trust described in section 401(a) of the federal in-

ternal revenue code of 1986 which is exempt from tax under section

501(a) of the federal internal revenue code of 1986 at the time of such

payment unless such payment is made to an employee of the trust as

remuneration for services rendered as such employee and not as a ben-

eficiary of the trust;

(B) under or to an annuity plan which, at the time of such payment,

is a plan described in section 403(a) of the federal internal revenue code

of 1986;

(C) under a simplified employee pension as defined in section

408(k)(1) of the federal internal revenue code of 1986, other than any

contribution described in section 408(k)(6) of the federal internal revenue

code of 1986;

(D) under or to an annuity contract described in section 403(b) of

the federal internal revenue code of 1986, other than a payment for the

purchase of such contract which was made by reason of a salary reduction

agreement whether evidenced by a written instrument or otherwise;

(E) under or to an exempt governmental deferred compensation plan

as defined in section 3121(v)(3) of the federal internal revenue code of

1986;

(F) to supplement pension benefits under a plan or trust described

in any of the foregoing provisions of this subparagraph to take into ac-

count some portion or all of the increase in the cost of living, as deter-

mined by the secretary of labor, since retirement but only if such sup-

plemental payments are under a plan which is treated as a welfare plan

under section 3(2)(B)(ii) of the federal employee retirement income se-

curity act of 1974; or

(G) under a cafeteria plan within the meaning of section 125 of the

federal internal revenue code of 1986;

(5) the payment by an employing unit (without deduction from the

remuneration of the employee) of the tax imposed upon an employee

under section 3101 of the federal internal revenue code of 1986 with

respect to remuneration paid to an employee for domestic service in a

private home of the employer or for agricultural labor;

(6) remuneration paid in any medium other than cash to an employee

for service not in the course of the employer's trade or business;

(7) remuneration paid to or on behalf of an employee if and to the

extent that at the time of the payment of such remuneration it is reason-

able to believe that a corresponding deduction is allowable under section

217 of the federal internal revenue code of 1986 relating to moving ex-

penses;

(8) any payment or series of payments by an employer to an employee

or any of such employee's dependents which is paid:

(A) Upon or after the termination of an employee's employment re-

lationship because of (i) death or (ii) retirement for disability; and

(B) under a plan established by the employer which makes provisions

for employees generally, a class or classes of employees or for such em-

ployees or a class or classes of employees and their dependents, other

than any such payment or series of payments which would have been paid

if the 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 the benefit of

an employee if at the time of such payment or such furnishing it is rea-

sonable to believe that the employee will be able to exclude such payment

or benefit from income under section 129 of the federal internal revenue

code of 1986 which relates to dependent care assistance programs;

(11) the value of any meals or lodging furnished by or on behalf of

the employer if at the time of such furnishing it is reasonable to believe

that the employee will be able to exclude such items from income under

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 former employee after the calendar year in which such employee died;

(13) any benefit provided to or on behalf of an employee if at the

time such benefit is provided it is reasonable to believe that the employee

will be able to exclude such benefit from income under section 74(c), 117

or 132 of the federal internal revenue code of 1986; or

(14) any payment made, or benefit furnished, to or for the benefit of

an employee, if at the time of such payment or such furnishing it is rea-

sonable to believe that the employee will be able to exclude such payment

or benefit from income under section 127 of the federal internal revenue

code of 1986 relating to educational assistance to the employee.

Nothing in any paragraph of subsection (o), other than paragraph (1),

shall exclude from the term ``wages'': (1) Any employer contribution un-

der a qualified cash or deferred arrangement, as defined in section 401(k)

of the federal internal revenue code of 1986, to the extent that such

contribution is not included in gross income by reason of section 402(a)(8)

of the federal internal revenue code of 1986; or (2) any amount treated

as an employer contribution under section 414(h)(2) of the federal inter-

nal revenue code of 1986.

Any amount deferred under a nonqualified deferred compensation

plan shall be taken into account for purposes of this section as of the later

of when the services are performed or when there is no substantial risk

of forfeiture of the rights to such amount. Any amount taken into account

as wages by reason of this paragraph, and the income attributable thereto,

shall not thereafter be treated as wages for purposes of this section. For

purposes of this paragraph, the term ``nonqualified deferred compensa-

tion plan'' means any plan or other arrangement for deferral of compen-

sation other than a plan described in subsection (o)(4).

(p) ``Week'' means such period or periods of seven consecutive cal-

endar days, as the secretary may by rules and regulations prescribe.

(q) ``Calendar quarter'' means the period of three consecutive cal-

endar months ending March 31, June 30, September 30 or December

31, or the equivalent thereof as the secretary may by rules and regulations

prescribe.

(r) ``Insured work'' means employment for employers.

(s) ``Approved training'' means any vocational training course or

course in basic education skills approved by the secretary or a person or

persons designated by the secretary.

(t) ``American vessel'' or ``American aircraft'' means any vessel or air-

craft documented or numbered or otherwise registered under the laws

of the United States; and any vessel or aircraft which is neither docu-

mented or numbered or otherwise registered under the laws of the

United States nor documented under the laws of any foreign country, if

its crew performs service solely for one or more citizens or residents of

the United States or corporations organized under the laws of the United

States or of any state.

(u) ``Institution of higher education,'' for the purposes of this section,

means an educational institution which:

(1) Admits as regular students only individuals having a certificate of

graduation from a high school, or the recognized equivalent of such a

certificate;

(2) is legally authorized in this state to provide a program of education

beyond high school;

(3) 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

(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 higher educa-

tion for purposes of this section, except that no college, university, junior

college or other postsecondary school or institution which is operated by

the federal government or any agency thereof shall be an institution of

higher education for purposes of the employment security law.

(v) ``Educational institution'' means any institution of higher educa-

tion, as defined in subsection (u) of this section, or any institution, except

private for profit institutions, 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 which is

approved, licensed or issued a permit to operate as a school by the state

department of education or other government agency that is authorized

within the state to approve, license or issue a permit for the operation of

a school or to an Indian tribe in the operation of an educational institution.

The courses of study or training which an educational institution offers

may be academic, technical, trade or preparation 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 with cul-

tivating the soil, or in connection with raising or harvesting any agricul-

tural or horticultural commodity, including the raising, shearing, feeding,

caring for, training, and management of livestock, bees, poultry, and fur-

bearing animals and wildlife.

(B) In the employ of the owner or tenant or other operator of a farm,

in connection with the operating, management, conservation, improve-

ment, 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 hur-

ricane, if the major part of such service is performed on a farm.

(C) In connection with the production or harvesting of any commod-

ity defined as an agricultural commodity in section (15)(g) of the agri-

cultural marketing act, as amended (46 Stat. 1500, sec. 3; 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.

(D) (i) In the employ of the operator of a farm in handling, planting,

drying, packing, packaging, processing, freezing, grading, storing, or de-

livering 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 1/2 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 paragraph (i) above of this subsection (w)(1)(D),

but only if such operators produced more than 1/2 of the commodity 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 service

performed in connection with commercial canning or commercial freez-

ing or in connection with any agricultural or horticultural commodity after

its delivery to a terminal market for distribution for consumption.

(E) On a farm operated for profit if such service is not in the course

of the employer's trade or business.

(2) ``Agricultural labor'' does not include service 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 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 structures used

primarily for the raising of agricultural or horticultural commodities, and

orchards.

(4) For the purpose of this section, if an employing unit does not

maintain sufficient records to separate agricultural labor from other em-

ployment, all services performed during any pay period by an individual

for the person employing such individual shall be deemed to be agricul-

tural labor if services performed during 1/2 or more of such pay period

constitute agricultural labor; but if the services performed during more

than 1/2 of any such pay period by an individual for the person employing

such individual do not constitute agricultural labor, then none of the serv-

ices of such individual for such period shall be deemed to be agricultural

labor. As used in this subsection (w), the term ``pay period'' means a

period of not more than 31 consecutive days for which a payment of

remuneration is ordinarily made to the individual by the person employ-

ing such individual.

(x) ``Reimbursing employer'' means any employer who makes pay-

ments in lieu of contributions to the employment security fund as pro-

vided in subsection (e) of K.S.A. 44-710 and amendments thereto.

(y) ``Contributing employer'' means any employer other than a re-

imbursing employer or rated governmental employer.

(z) ``Wage combining plan'' means a uniform national arrangement

approved by the United States secretary of labor in consultation with the

state unemployment compensation agencies and in which this state shall

participate, whereby wages earned in one or more states are transferred

to another state, called the ``paying state,'' and combined with wages in

the paying state, if any, for the payment of benefits under the laws of the

paying state and as provided by an arrangement so approved by the

United States secretary of labor.

(aa) ``Domestic service'' means any service for a person in the oper-

ation and maintenance of a private household, local college club or local

chapter of a college fraternity or sorority, as distinguished from service

as an employee in the pursuit of an employer's trade, occupation, pro-

fession, enterprise or vocation.

(bb) ``Rated governmental employer'' means any governmental entity

which elects to make payments as provided by K.S.A. 44-710d and

amendments thereto.

(cc) ``Benefit cost payments'' means payments made to the employ-

ment security fund by a governmental entity electing to become a rated

governmental employer.

(dd) ``Successor employer'' means any employer, as described in sub-

section (h) of this section, which acquires or in any manner succeeds to

(1) substantially all of the employing enterprises, organization, trade or

business of another employer 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 of a business with employment to which another employer has

succeeded.

(ff) ``Lessor employing unit'' means any independently established

business entity which engages in the business of providing leased em-

ployees to a client lessee.

(gg) ``Client lessee'' means any individual, organization, partnership,

corporation or other legal entity leasing employees from a lessor employ-

ing unit.

(hh) ``Qualifying injury'' means a personal injury by accident arising

out of and in the course of employment within the coverage of the Kansas

workers compensation act, K.S.A. 44-501 et seq., and amendments

thereto.

Sec. 7. K.S.A. 44-704 and 44-757 and K.S.A. 2002 Supp. 44-703, 44-

706 and 44-710 are hereby repealed.

Sec. 8. This act shall take effect and be in force from and after its

publication in the statute book.

Approved April 18, 2002.


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Date Composed: 10/29/2003 Date Modified: 10/29/2003