The Vermont Statutes Online

Title 21 : Labor

Chapter 017 : Unemployment Compensation

Subchapter 001 : GENERAL BENEFITS

• § 1301. Definitions

  As used in this chapter:

  (1) “Benefits” and “compensation” means the money payments payable to an individual, as provided in this chapter, with respect to the individual’s unemployment.

  (2) “Commissioner” means the Commissioner of Labor or the Commissioner’s authorized representative.

  (3) “Contributions” means the money payments to the State Unemployment Compensation Trust Fund required by this chapter.

  (4) “Employing unit” means any individual or type of organization, including any partnership, association, labor organization as defined in the National Labor Relations Act, 29 U.S.C. § 152(5), trust, estate, joint stock company, insurance company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee, or successor thereof, or the legal representative of a deceased person, any federal, state, or local governmental entity, which has had in its employ one or more individuals performing services for it within this State. All individuals performing services within this State for any employing unit that maintains two or more separate establishments within this State shall be deemed to be employed by a single employing unit for all the purposes of this chapter.

  (5) “Employer” includes:

  (A) Any employing unit that in any calendar quarter in either the current or preceding calendar year paid for service in employment, as defined pursuant to subdivision (6) of this section, wages of $1,500.00 or more, or for some portion of a day in each of 20 different calendar weeks, whether or not the weeks were consecutive, in either the current or the preceding calendar year, had in employment at least one individual (irrespective of whether the same individual was in employment in each such day). When an employing unit described in either this subdivision (A) or subdivision (B) of this subdivision (5) becomes an employer within any calendar year, it shall be subject to this chapter for the whole of the calendar year.

  (B)(i) Any employing unit for which service in employment for a religious, charitable, educational, or other organization as defined in subdivision (6)(A)(ix) of this section is performed, except as provided in subdivision (C) of this subdivision (5).

  (ii) Any employing unit for which service in employment for the State and any of its instrumentalities, for a hospital or an institution of higher education as defined in subdivision (6)(A)(x)(I) of this section is performed, except as provided in subdivision (5)(C) of this section.

  (iii) Any employing unit for which service in employment for the State or any political subdivision as defined in subdivision (6)(A)(x)(II) of this section is performed, except as provided in subdivision (5)(C) of this section.

  (iv) Any employing unit for which agricultural labor as described in subdivision (6)(A)(vii)(I) of this section is performed.

  (v) Any employing unit for which domestic service in employment as described in subdivision (6)(A)(viii) is performed.

  (C) An employing unit as described in subdivisions (5)(A) and (B) of this section except:

  (i) In determining whether or not an employing unit for which service other than domestic service is also performed is an employer under this subdivision (5), the wages earned or the employment of an employee performing domestic service as described in subdivision (5)(B)(v) of this section shall not be taken into account unless the total cash remuneration paid in any calendar quarter for domestic services is $1,000.00 or more.

  (ii) In determining whether or not an employing unit for which service other than agricultural labor is also performed is an employer under this subdivision (5), the wages earned or the employment of an employee performing service in agricultural labor shall not be taken into account unless the agricultural labor is in accordance with subdivision (6)(A)(vii)(I) of this section. If an employing unit is determined an employer of agricultural labor, the employing unit shall be determined an employer for purposes of subdivision (5)(A) of this section.

  (D) Any individual or employing unit that acquired the organization, trade, or business of another that at the time of the acquisition was an employer subject to this chapter.

  (E)(i) Any employing unit that filed with and had approved by the Commissioner, on the proper forms prescribed and supplied by the Commissioner, its written election to become fully subject to this chapter for not less than two calendar years. The employing unit, not otherwise subject to this chapter, that files with the Commissioner its written election to become an employer subject to this chapter for not less than two calendar years, shall, with the written approval of the election by the Commissioner, become an employer subject to this chapter to the same extent as all other employers, as of the date stated in the approval.

  (ii) Any employing unit for which services that are excluded from the term “employment” by subdivisions (6)(A)(ix) and (6)(C)(i) and (ii) of this section are performed may, by election and approval, elect that all services performed by individuals in its employ, in one or more establishments or places of business, shall be deemed to constitute employment for all the purposes of this chapter for not less than two calendar years. Upon the written approval of the election by the Commissioner the services shall be deemed to constitute employment subject to this chapter from the date stated in the approval.

  (iii) Any such employing unit may cease to be subject under either subdivision (5)(E)(i) or (ii) of this section, as of January 1, of any calendar year subsequent to the two calendar years, only if at least 30 days prior to the first day of January it files with the Commissioner a written notice of its intention to cancel the election. This requirement may be waived by the Commissioner for good cause.

  (F) Any employing unit that acquires a part of the organization, trade, or business of another, which part, if a separate organization, trade, or business, would have been an employer. Any employing unit that acquires the organization, trade, or business, or acquires substantially all the assets of another employing unit, if the employment record of the acquiring employing unit subsequent to such an acquisition, together with the employment record of the acquired unit prior to the acquisition, both within the same calendar year, would be sufficient to constitute an employing unit an “employer.”

  (G) Any employing unit not an employer by reason of any other provision of this subdivision (5) for which, within either the current or preceding calendar year, service is or was performed with respect to which the employing unit is liable for any federal tax against which credit may be taken for contributions required to be paid into a state unemployment fund; or that, as a condition for approval of this chapter for full tax credit against the tax imposed by the Federal Unemployment Tax Act, is required, pursuant to the Act, to be an “employer” under this chapter.

  (6)(A)(i) “Employment,” subject to the other provisions of this subdivision (6), means service within the jurisdiction of this State performed by an employee, as defined in subsections 3306(i) and (o) of the Federal Unemployment Tax Act, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, expressed or implied. Services partly within and partly outside this State may by election as provided in subdivision (5)(E)(i) of this section be treated as if wholly within the jurisdiction of this State. If an employing unit has elected to come under the provisions of a similar act of a state where a part of the services of an employee are performed, the Commissioner, upon approving the election as to the employee, may treat the services covered by the election as having been performed wholly outside the jurisdiction of this State.

  (ii) The term “employment” includes an individual’s entire service, performed within, or both within and outside, this State if the service is localized in this State. Service shall be deemed to be localized within a state if:

  (I) the service is performed entirely within the state; or

  (II) the service is performed both within and outside the state but the service performed outside the state is incidental to the individual’s service within the state; for example, is temporary or transitory in nature or consists of isolated transactions.

  (iii) The term “employment” includes an individual’s entire service, performed within, or both within and outside, this State if the service is not localized in any state but some of the service is performed in this State and:

  (I) the individual’s base of operations is in this State;

  (II) if there is no base of operations, then the place from which the service is directed or controlled is in this State; or

  (III) the individual’s base of operations or place from which the service is directed or controlled is not in any state in which some part of the service is performed, but the individual’s residence is in this State.

  (iv) The term “employment” includes an individual’s service wherever performed within the United States, the Virgin Islands, or Canada, if:

  (I) the service is not covered under the unemployment compensation law of any other state, the Virgin Islands, or Canada; and

  (II) the place from which the service is directed or controlled is in this State.

  (v) The term “employment” includes the service of an individual who is a citizen of the United States, performed outside the United States in the employ of an American employer (other than service that is deemed “employment” under the provisions of subdivisions (6)(A)(ii), (iii), or (iv) of this section 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 the employer is an individual who is a resident of this State; or the employer is a corporation that is organized under the laws of this State; or 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 one other state; or

  (III) none of the criteria of subdivisions (6)(A)(v)(I) and (II) of this section is met but the employer has elected coverage in this State or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits, based on such service under the law of this State.

  (IV) an “American employer,” for purposes of this subdivision (6)(A)(v) means a person who is:

  (aa) an individual who is a resident of the United States; or

  (bb) a partnership, if two-thirds or more of the partners are residents of the United States; or

  (cc) a trust, if all of the trustees are residents of the United States; or

  (dd) a corporation organized under the law of the United States or of any state.

  (vi) The term “employment” also includes all service performed by an officer or member of the crew of an American vessel on or in connection with the vessel, provided that the operating office, from which the operations of the vessel operating on navigable waters within or within and outside the United States is ordinarily and regularly supervised, managed, directed, and controlled, is within this State.

  (vii) The term “employment” also includes all service performed by an individual in agricultural labor as defined in subdivision (6)(C)(i)(I) of this section when:

  (I) The service is performed for a person who:

  (aa) during any calendar quarter in either the current or the preceding calendar year paid remuneration in cash of $20,000.00 or more to individuals employed in agricultural labor; or

  (bb) for some portion of a day in each of 20 different calendar weeks, whether or not the weeks were consecutive, in either the current or the preceding calendar year, employed in agricultural labor 10 or more individuals, regardless of whether they were employed at the same moment of time.

  (II) The service is not performed in agricultural labor if performed by an individual who is an alien admitted to the United States to perform service in agricultural labor pursuant to 8 U.S.C. §§ 1101(a)(15)(H) and 1184(c), provided that if 26 U.S.C. § 3306 (Federal Unemployment Tax Act, definitions) is amended to include the service in the definition of employment in agricultural labor then the service shall be employment in agricultural labor under this chapter.

  (III) For the purposes of this subdivision (6)(A)(vii), any individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for any other person shall be treated as an employee of the crew leader:

  (aa) if the crew leader holds a valid certificate of registration under the Migrant Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 1801 et seq.; or substantially all the members of the crew operate or maintain tractors, mechanized harvesting or cropdusting equipment, or any other mechanized equipment, that is provided by such crew leader; and

  (bb) if the individual is not an employee of the other person within the meaning of subdivision (6)(A) of this section.

  (IV) For the purposes of this subdivision (vii), in the case of any individual who is furnished by a crew leader to perform service in agricultural labor for any other person and who is not treated as an employee of the crew leader under subdivision (6)(A)(vii)(III) of this section:

  (aa) the other person and not the crew leader shall be treated as the employer of the individual; and

  (bb) the other person shall be treated as having paid cash remuneration to the individual in an amount equal to the amount of cash remuneration paid to the individual by the crew leader (either on the crew leader’s own behalf or on behalf of the other person) for the service in agricultural labor performed for the other person.

  (V) For the purposes of this subdivision (vii), the term “crew leader” means an individual who:

  (aa) furnishes individuals to perform service in agricultural labor for any other person;

  (bb) pays (either on the crew leader’s own behalf or on behalf of the other persons) the individuals furnished by the crew leader for the service in agricultural labor performed by them; and

  (cc) has not entered into a written agreement with the other person under which the individual is designated as an employee of the other person.

  (viii) The term “employment” also includes domestic service as used in subdivision (6)(C)(ii) of this section in a private home, a local college club, or local chapter of a college fraternity or sorority, performed for a person who paid cash remuneration of $1,000.00 or more in any calendar quarter in the current calendar year or the preceding calendar year to individuals employed in domestic service.

  (ix) The term “employment” also includes service for any employing unit performed by an individual in the employ of a religious, charitable, educational, or other organization if the service is excluded from “employment” as defined in the Federal Unemployment Tax Act solely by reason of 26 U.S.C. § 3306(c)(8) of that act.

  (x)(I) The term “employment” also includes service for any employing unit that is performed by an individual in the employ of this State or any of its instrumentalities, or in the employ of this State and one or more other states or their instrumentalities, for a hospital or institution of higher education located in this State provided that the service is excluded from “employment” as defined in the Federal Unemployment Tax Act solely by reason of 26 U.S.C. § 3306(c)(7) and is not excluded from “employment” under subdivision (6)(C)(vii) of this section.

  (II) The term “employment” also includes service for any employing unit that is performed by an individual in the employ of this State or any political subdivision of the State or any of its instrumentalities or any instrumentality of one or more of them; and service performed for this State or any political subdivision of this State and one or more other states or political subdivisions of another state or any instrumentality of them that is wholly owned by the states or political subdivisions, provided that the service is excluded from “employment” as defined in the Federal Unemployment Tax Act by 26 U.S.C. § 3306(c)(7) and is not excluded from “employment” under subdivision (6)(C)(vii) of this section.

  (B) Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the Commissioner that:

  (i) the individual has been and will continue to be free from control or direction over the performance of the services, both under the individual’s contract of service and in fact;

  (ii) the service is either outside the usual course of the business for which the service is performed, or the service is performed outside of all the places of business of the enterprise for which the service is performed; and

  (iii) the individual is customarily engaged in an independently established trade, occupation, profession, or business.

  (C) The term “employment” does not include:

  (i)(I) Service performed by an individual in agricultural labor except as provided in subdivision (6)(A)(vii) of this section. As used in this subdivision (6)(C), the term “agricultural labor” means any remunerated service performed:

  (aa) on a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife;

  (bb) in the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of the farm and its tools and equipment or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of the service is performed on a farm;

  (cc) in connection with the production or harvesting of any commodity defined as an agricultural commodity pursuant to the Agricultural Marketing Act, 12 U.S.C. § 1141j, 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;

  (dd) in the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity, but only if the operator produced more than one-half of the commodity with respect to which the service is performed;

  (ee) in the employ of a group of operators of farms, or a cooperative organization of which the operators are members, in the performance of service described in subdivision (dd) of this subdivision (C)(i)(I), but only if the operators produced more than one-half of the commodity with respect to which the service is performed; or

  (ff) on a farm operated for profit if the service is not in the course of the employer’s trade or business.

  (II) As used in subdivision (6)(C)(i)(I) of this section, the term “farm” includes stock; dairy; poultry; fruit; fur-bearing animal; truck farms; plantations; ranches; nurseries; ranges; greenhouses, or other similar structures used primarily for the raising of agricultural or horticultural commodities; and orchards.

  (III) The provisions of subdivisions (dd) and (ee) of subdivision (6)(C)(i)(I) of this section shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption.

  (ii) Domestic service in a private home except as provided in subdivision (6)(A)(viii) of this section.

  (iii)(I) Service not in the course of the employer’s trade or business performed in any calendar quarter by an employee, unless the cash remuneration paid for that service is $50.00 or more and the service is performed by an individual who is regularly employed by the employer to perform the service. For purposes of this subdivision (6)(C)(iii), an individual shall be deemed to be regularly employed by an employer during a calendar quarter if:

  (aa) on each of 24 days during the quarter the individual performs for the employer for some portion of the day service not in the course of the employer’s trade or business; or

  (bb) the individual was regularly employed, as defined pursuant to subdivision (aa) of this subdivision (6)(C)(iii), by the employer in the performance of the service during the preceding calendar quarter.

  (II) The term “service not in the course of the employer’s trade or business” includes service that does not promote or advance the trade or business of the employer. Services performed for a corporation do not come within the exception.

  (iv) Service performed by an individual in the employ of the individual’s child or spouse, and service performed by a minor in the employ of the minor’s parent; or service by one member of a family to another under circumstances that, under the general law, do not give rise to the relation of employer and employee.

  (v) Service performed in the employ of the U.S. government or of an instrumentality of the United States, provided that if the U.S. Congress permits states to require that the U.S. government or any instrumentalities of the United States make payments into an unemployment fund under a state unemployment compensation act, then, to the extent permitted by federal law, and from and after the date on which the permission becomes effective, the provisions of this chapter shall be applicable to the U.S. government or its 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 the provisions of this chapter become applicable to the U.S. government and its instrumentalities and, in any year, the State is not certified by the Secretary of Labor under 26 U.S.C. § 3304, then the payments required of the U.S. government or its instrumentalities with respect to that year shall be deemed to have been erroneously collected under section 1337 of this subchapter and shall be refunded by the Commissioner from the Fund in accordance with the provisions of section 1337.

  (vi) Service performed in the employ of a governmental entity referred to in subdivision (6)(A)(x) of this section if the service is performed by an individual in the exercise of duties:

  (aa) as an elected official;

  (bb) as a member of a legislative body, or a member of the judiciary, of a state or political subdivision;

  (cc) as a member of the Vermont National Guard or Air National Guard;

  (dd) as an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or similar emergency; or

  (ee) in a position that, pursuant to the laws of this State, is designated as a policymaking or advisory position the performance of the duties of which ordinarily does not require more than eight hours per week.

  (vii) For the purposes of subdivisions (6)(A)(ix) and (6)(A)(x) of this section, the term “employment” does not include service performed:

  (I) in the employ of a church or convention or association of churches, or an organization that is operated primarily for religious purposes and that is operated, supervised, controlled, or principally supported by a church or convention or association of churches;

  (II) by a duly ordained, commissioned, or licensed minister of a church in the exercise of the individual’s ministry or by a member of a religious order in the exercise of duties required by the order;

  (III) [Repealed.]

  (IV) by an individual performing rehabilitative or remunerative work in a facility operated for the purpose of:

  (aa) carrying out a program of rehabilitation for individuals whose earning capacity is limited due to being an elder or having a disability or injury; or

  (bb) providing remunerative work for individuals who because of having a disability cannot be readily absorbed in the competitive labor market;

  (V) by an individual receiving work relief or work training as part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision of a state; or

  (VI) by an inmate of a custodial or penal institution.

  (viii) Service with respect to which unemployment compensation is payable under an unemployment compensation system established by an act of Congress, provided that the Commissioner is authorized and directed to enter into agreements with the proper agencies under such an act of Congress, which agreements shall become effective 10 days after publication in one or more newspapers of general circulation in this State, to provide reciprocal treatment to individuals who have, after acquiring potential rights to unemployment compensation under the act of Congress, acquired rights to benefits under this chapter.

  (ix) Service performed with respect to which unemployment compensation is payable under the Railroad Unemployment Insurance Act, 45 U.S.C. chapter 11.

  (x) Service as an officer or member of a crew of an American vessel performed on or in connection with the vessel, if the operating office, from which the operations of the vessel operating on navigable waters within or outside the United States are ordinarily and regularly supervised, managed, directed, and controlled, is outside this State.

  (xi) Service performed on or in connection with a vessel that is not an American vessel by an individual, if the individual performs services on and in connection with the vessel when outside the United States. As used in this subdivision (xi) and subdivision (6)(C)(x) of this section, “American vessel” means any vessel documented or numbered under the laws of the United States, and includes any vessel that is neither documented or numbered under the laws of the United States nor documented under the laws of any foreign country, if its crew performs services 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.

  (xii) Service performed by an individual in, or as an officer or member of the crew of a vessel while it is engaged in, the catching, taking, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal and vegetable life, including service performed by any such individual as an ordinary incident to any such activity, except:

  (I) service performed in connection with the catching or taking of salmon or halibut, for commercial purposes; and

  (II) service performed on or in connection with a vessel of more than 10 net tons, determined in the manner provided for determining the register tonnage of merchant vessels under the laws of the United States.

  (xiii) Service performed in any calendar quarter in the employ of any organization exempt from income tax under Section 501(a) (other than an organization described in Section 401(a)) or under Section 521 of the federal Internal Revenue Code, if the remuneration for the service is less than $50.00.

  (xiv) Service performed in the employ of a school, college, or university, if the service is performed by a student who is enrolled and is regularly attending classes at the school, college, or university, or by the spouse of such a student, if the spouse is advised at the time the spouse commences to perform the service that the employment of the spouse to perform the service is provided under a program to provide financial assistance to the student by the school, college, or university, and the employment will not be covered by any program of unemployment insurance.

  (xv) Service performed by an individual under 22 years of age who is enrolled at a nonprofit or public educational institution that normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on as a student in a full-time program, taken for credit at such institution, that combines academic instruction with work experience, if the service is an integral part of the program and the institution has so certified to the employer. This subdivision (xv) shall not apply to service performed in a program established for or on behalf of an employer or group of employers.

  (xvi) Service performed in the employ of a hospital, if the service is performed by a patient of the hospital, as defined in this section.

  (xvii) Service performed by an individual for a person as an insurance agent or as an insurance solicitor, if all the service performed by the individual for the person is performed for remuneration solely by way of commission.

  (xviii) Service performed by an individual for a person as a salesman, agent, or solicitor if the state law requires the individual to be registered or licensed to engage in the performance of the service and if the individual in the performance of the service is an independent contractor under common law rules and if the individual performs all such service for remuneration solely by way of commission.

  (xix) Service performed by an individual engaged in the harvesting of timber or in the transportation of timber from the place where harvested to market, or service performed by an individual engaged as a stone artisan, including sculpting, etching, or carving quarried stone, when:

  (I) the individual has been and will continue to be free from control or direction over the performance of the services, both under the individual’s contract of service and in fact;

  (II) the individual is customarily engaged in an independently established trade, occupation, profession, or business; and

  (III) the individual furnishes substantially all of the equipment, tools, and supplies necessary in carrying out the individual’s contractual obligations to the individual’s clients.

  (xx) Service performed by a full-time student as defined in subdivision (III) of this subdivision (6)(C)(xx) in the employ of an organized camp if:

  (I) the camp:

  (aa) did not operate for more than seven months in the calendar year and did not operate for more than seven months in the preceding calendar year; or

  (bb) had average gross receipts for any six months in the preceding calendar year that were not more than 33 1/3 percent of its average gross receipts for the other six months in the preceding calendar year; and

  (II) the full-time student performed services in the employ of the camp for less than 13 calendar weeks in the calendar year, provided that if the individual does not enroll in the immediately succeeding academic year or term, then the services of the individual as defined in this subsection shall be deemed to be employment for all purposes under this chapter.

  (III) As used in this subdivision (6)(C)(xx), an individual shall be treated as a full-time student for any period:

  (aa) during which the individual is enrolled as a full-time student at an educational institution; or

  (bb) that is between academic years or terms if the individual was enrolled as a full-time student at an educational institution for the immediately preceding year or term and there is a reasonable assurance that the individual will be so enrolled for the immediately succeeding academic year or term.

  (xxi) Service performed by a direct seller if the individual is in compliance with all the following:

  (I) The individual is engaged in the trade or business of selling or soliciting the sale of consumer products, including services or other intangibles, in the home or a location other than in a permanent retail establishment, including whether the sale or solicitation of a sale is to any buyer on a buy-sell basis, a deposit-commission basis, or any similar basis for resale by the buyer or any other person.

  (II) Substantially all the remuneration, whether or not received in cash, for the performance of the services described in subdivision (I) of this subdivision (6)(C)(xxi) 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 individual are performed pursuant to a written contract between the individual and the person for whom the services are performed, and the contract provides that the individual will not be treated as an employee for federal and state tax purposes.

  (D) Notwithstanding any other provisions of this subdivision (6), 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 required to be paid into a state unemployment fund or which as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act is required to be covered under this chapter.

  (7) “Employment office” means a free public employment office, or branch thereof, of the Vermont Employment Service Division, or an office maintained by another state as a part of a state-controlled system of free public employment offices, or by a federal agency or any agency of a foreign government charged with the administration of an unemployment compensation program or free public employment office, or such other agencies as the Secretary of Labor may approve.

  (8) “Fund” means the Unemployment Compensation Trust Fund established by this chapter, to which all contributions required and from which all benefits provided under this chapter shall be paid.

  (9) “Total and partial unemployment.”

  (A) An individual shall be deemed “totally unemployed” in any week during which the individual performs no services and with respect to which no wages are earned by the individual.

  (B) An individual shall be deemed “partially unemployed” in any week of less than full-time work if the wages earned by the individual with respect to the week are less than the weekly benefit amount the individual would be entitled to receive if totally unemployed and eligible.

  (C) As used in this subdivision (9), “wages” includes only that part of remuneration in any one week rounded to the next higher dollar that is in excess of the amount specified in section 1338a of this subchapter.

  (D) An individual’s week of unemployment shall be deemed to commence only after the individual’s registration at an employment office, except as the Vermont Employment Security Board may by rule otherwise prescribe.

  (10) “State” means the states of the United States of America, the Commonwealth of Puerto Rico, the District of Columbia, and the Virgin Islands.

  (11) “Unemployment Compensation Administration Fund” means the Unemployment Compensation Administration Fund established by this chapter, from which administrative expenses under this chapter shall be paid.

  (12) “Wages” means all remuneration paid for services rendered by an individual, including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash. Gratuities customarily received by an individual in the course of the individual’s employment from persons other than the individual’s employer and reported by the individual to the individual’s employer shall be treated as wages paid by the individual’s employer. The reasonable cash value of remuneration paid in any medium other than cash shall be estimated and determined in accordance with rules adopted by the Board. The term “wages” does not include:

  (A) The amount of any payment (including any amount paid by an employer 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 the employee’s dependents under a plan or system established by an employer that makes provision for the employer’s employees generally (or for the employer’s employees generally and their dependents) or for a class or classes of the employer’s employees (or for a class or classes of the employer’s employees and their dependents), on account of:

  (i) sickness or accident disability (but, in the case of payments made directly to an employee or any of the employee’s dependents, this subdivision (i) shall exclude from the term “wages” only payments that are received under a workers’ compensation law);

  (ii) medical or hospitalization expenses in connection with sickness or accident disability; or

  (iii) death.

  (B) Any payment on account of sickness or accident disability, or medical 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 the employer.

  (C) Any payment made to, or on behalf of, an employee or the employee’s beneficiary:

  (i) from or to a trust described in 26 U.S.C. § 401(a) that is exempt from tax under 26 U.S.C. § 501(a) at the time of the payment unless the payment is made to an employee of the trust as remuneration for services rendered as the employee and not as a beneficiary of the trust; or

  (ii) under or to an annuity plan that, at the time of the payment, is a plan described in 26 U.S.C. § 403(a).

  (D) The payment by an employer (without deduction from the remuneration of the employee) of the tax imposed upon an employee under 26 U.S.C. § 3101.

  (E) Any amounts received from the federal government by members of the National Guard and reserve components of the U.S. Armed Forces as drill pay, including longevity pay and allowances.

  (F) If the definition of “wages” in 26 U.S.C. § 3306, Federal Unemployment Tax Act, is amended to no longer exclude any or all of the payments or amounts enumerated in subdivisions (A) through (E) of this subdivision (12), then payments or amounts no longer excluded from the federal definition shall be included in the definition of “wages” under this this subdivision (12), effective on the effective date of the amendment to the Federal Unemployment Tax Act.

  (G) Any foster care payments excluded from the definition of gross income under 26 U.S.C. § 131.

  (13) “Week” means a period or periods of seven consecutive days, as the Board may by rule prescribe.

  (14) “Calendar quarter” means a period of three consecutive calendar months ending on March 31, June 30, September 30, or December 31, or the equivalent of such a period as the Board may by rule prescribe.

  (15) An individual’s “weekly benefit amount” with respect to any week means the amount of benefits the individual would be entitled to receive for the week if totally unemployed and eligible for benefits for the week.

  (16)(A) “Benefit year,” with respect to any individual, means the one- year period beginning with the first day of the week with respect to which the individual first files a valid claim for benefits in accordance with section 1346 of this subchapter, and thereafter the one-year period beginning with the first day of the first week with respect to which the individual next files such a claim for benefits after the termination of the individual’s last preceding benefit year.

  (B) [Repealed.]

  (17) “Base period” means:

  (A) The period made up of the first four of the most recently completed five calendar quarters immediately preceding the first day of a claimant’s benefit year.

  (B) For any individual who fails to meet the eligibility requirements of section 1338 of this subchapter in the base period set forth pursuant to subdivision (A) of this subdivision (17), the Commissioner shall make a redetermination of entitlement based upon a base period that consists of the last four completed calendar quarters immediately preceding the first day of the claimant’s benefit year.

  (C) For any individual who fails to qualify for benefits under subdivisions (A) and (B) of this subdivision (17), the Commissioner shall make a redetermination of entitlement based upon a base period that consists of the last three completed calendar quarters and all wages paid prior to the effective date of the claimant’s initial claim in the calendar quarter in which the initial claim was filed.

  (D) All wages that fall within the “base period” of valid claims under this section shall not be available for reuse in qualifying for any subsequent benefit years under section 1338 or 1318 of this subchapter.

  (18)(A) “Institution of higher education” means an educational institution that:

  (i) admits as regular students only individuals having a certificate of graduation from a high school, or the recognized equivalent of such a certificate;

  (ii) is legally authorized in this State to provide a program of education beyond high school;

  (iii) provides an educational program for which it awards a bachelor’s or higher degree, or provides a program that is acceptable for full credit toward such a degree, a program of post-graduate or post-doctoral studies, or a program of training to prepare students for gainful employment in a recognized occupation; and

  (iv) is a public or other nonprofit institution.

  (B) Notwithstanding any provision of this subdivision (18) to the contrary, all colleges and universities in this State are institutions of higher education for purposes of this chapter.

  (19) “Hospital” means an institution that has been licensed, certified, or approved by the Department of Health as a hospital, or an institution that is operated by the State of Vermont or any of its instrumentalities as a hospital.

  (20) “Rate year” means the period beginning on July 1 of a year and ending on June 30 of the following year.

  (21) “Bona fide employer” means the federal government, state governments and political subdivisions of state governments, railroads, tax exempt nonprofit organizations, established agricultural employers, employers liable under the unemployment compensation laws of this State, and an employer who has been assigned an employer identification number by the U.S. Internal Revenue Service.

  (22) “Rounding ” means, notwithstanding any other provisions of this chapter to the contrary, any amount of unemployment compensation payable to any individual for any week, if not an even dollar amount, shall be rounded to the next lower full dollar amount.

  (23) “Valid claim” means a claim for benefits filed by an individual who, at the time of filing the claim, has had sufficient wages in employment with an employer or employers to qualify for benefits pursuant to section 1338 of this title. The filing of a valid claim is a prerequisite to the making of a determination of an individual’s eligibility for benefits under section 1343 of this title and a determination of an individual’s disqualification for benefits under section 1344 of this title.

  (24) “Self-employment”:

  (A) Except as provided in subdivision (B) of this subdivision (24), an individual shall be deemed “self-employed” or “engaged in self-employment” in any week during which the individual is engaged, not in the employ of another, in the formation, development, or operation of a trade, business, enterprise, profession, or any other activity that the individual has undertaken for the purpose of producing income and that is in the form of a sole proprietorship, partnership, joint venture, or other similar entity.

  (B) An individual who is able to work and available for full-time work shall not be deemed to be self-employed or engaged in self-employment solely by reason of continued participation without substantial change during a period of unemployment in any activity undertaken while customarily employed by an employer in full-time work (whether or not such work constituted employment) and continued subsequent to separation from such work when the activity is not engaged in as a primary source of livelihood. Earnings from such a sideline activity shall not constitute wages or disqualifying income for unemployment purposes.

  (25) “Child” includes an individual’s biological child, foster child, adoptive child, stepchild, a child for whom the individual is listed as a parent on the child’s birth certificate, a legal ward of the individual, a child of the individual’s spouse, or a child that the individual has day-to-day responsibilities to care for and financially support.

  (26) “Spouse” includes an individual’s domestic partner or civil union partner. As used in this subdivision, “domestic partner” means another individual with whom an individual has an enduring domestic relationship of a spousal nature, provided that the individual and the individual’s domestic partner:

  (A) have shared a residence for at least six months;

  (B) are at least 18 years of age;

  (C) are not married to, in a civil union with, or considered the domestic partner of another individual;

  (D) are not related by blood closer than would bar marriage under State law; and

  (E) have agreed between themselves to be responsible for each other’s welfare. (Amended 1959, No. 10, eff. Feb. 27, 1959; 1959, No. 33, eff. March 11, 1959; 1959, No. 107, § 1, eff. April 10, 1959; 1959, No. 120, eff. Jan. 1, 1960; 1959, No. 262, § 35, eff. June 11, 1959; 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210, §§ 15, 16, eff. July 11, 1961; 1963, No. 84,§§ 1, 2; 1963, No. 122, eff. June 3, 1963; 1965, No. 64, eff. Jan. 1, 1966; 1967, No. 43, § 1, eff. March 23, 1967; 1967, No. 184, eff. April 17, 1967; 1967, No. 247 (Adj. Sess.), § 1, eff. Feb. 20, 1968; 1971, No. 77, § 1, eff. Dec. 31, 1971; 1971, No. 184 (Adj. Sess.), § 7, eff. March 29, 1972; 1973, No. 74, § 1, eff. April 14, 1973; 1975, No. 40; 1977, No. 64, §§ 1-7, 21, 22; 1979, No. 53; 1979, No. 120 (Adj. Sess.), §§ 1-5, eff. April 14, 1980; 1981, No. 66, § 5(b), eff. May 1, 1981; 1981, No. 86, § 8, eff. May 10, 1981; 1983, No. 16, §§ 1, 2, 10, 12, eff. April 4, 1983; 1985, No. 50, §§ 1-3; 1985, No. 146 (Adj. Sess.), § 3; 1987, No. 31, eff. May 8, 1987; 1987, No. 66; 1987, No. 227 (Adj. Sess.) §§ 1, 3, eff. May 26, 1988; 1991, 1987, No. 82, § 1; 1991 No. 183 (Adj. Sess.), § 1; 1993, No. 227 (Adj. Sess.), § 17; 1997, No. 101 (Adj. Sess.), §§ 1, 6; 2003, No. 131 (Adj. Sess.), § 2; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2005, No. 136 (Adj. Sess.), § 1; 2007, No. 104 (Adj. Sess.), § 1; 2013, No. 96 (Adj. Sess.), § 139; 2023, No. 53, § 124, eff. June 8, 2023; 2023, No. 76, § 39, eff. July 1, 2023; 2023, No. 76, § 40, eff. July 1, 2024; 2023, No. 85 (Adj. Sess.), § 170, eff. July 1, 2024; 2023, No. 184 (Adj. Sess.), § 5, eff. July 1, 2024.)