N.D. Cent. Code § 52-01-01 Definitions
52-01-01. Definitions
In the North Dakota unemployment compensation law, unless the context or subject matter
otherwise requires:
1. "Annual payroll" means the total amount of taxable wages for employment paid by an
employer during a twelve-month period ending on September thirtieth of any calendar
year.
2. "Average annual payroll" means:
a. The annual payroll for the twelve-month period immediately preceding the
computation date for an employer who has been liable for twelve but less than
twenty-four months.
b. The average of the annual payrolls for the last two 12-month periods immediately
preceding the computation date for an employer who has been liable for
twenty-four but less than thirty-six months.
c. The average of the annual payrolls for the last three 12-month periods
immediately preceding the computation date for an employer who has been liable
for thirty-six months or more.
3. "Base period" means the first four of the last five completed calendar quarters
immediately preceding the first day of an individual's benefit year. In a combined-wage
claim, the base period must be that of the paying state.
4. "Base-period employers" means the employers by whom an individual was paid the
individual's base-period wages.
5. "Base-period wages" means the wages paid to an individual during the individual's
base period for insured work.
6. "Benefit year" means the fifty-two-week period beginning the first week in which an
insured worker first files a request for determination of the worker's insured status and
thereafter the fifty-two-week period beginning the first week in which the individual next
files such request after the end of the individual's last preceding benefit year. The filing
of a notice of unemployment must be deemed a request for determination of insured
status if a current benefit year has not previously been established. In a
combined-wage claim, the benefit year must be that of the paying state. However, if
the establishment of a benefit year for a fifty-two-week period under this subsection
would result in overlapping any quarter of that base period with the base period of a
subsequent valid claim, the benefit year must be fifty-three weeks. A subsequent
benefit year cannot be established until the expiration of the current benefit year.
7. "Benefits" means the money payments payable to an individual with respect to the
individual's unemployment as provided in chapter 52-06 and in the event of a
disqualification for benefits as provided for in subsection 1, 2, or 3 of section 52-06-02,
the payment of benefits must be postponed for the period of time prescribed therein.
8. "Bureau" means job service North Dakota bureau.
9. "Calendar quarter" means the period of three consecutive calendar months ending on
March thirty-first, June thirtieth, September thirtieth, or December thirty-first.
10. "Computation date" means September thirtieth of each calendar year with respect to
rates of contribution applicable to the calendar year beginning with the following
January first.
11. "Contributions" and "payments in lieu of contributions" each mean money payments
required to be paid into the unemployment compensation fund, the first being in
respect to wages paid for insured work in employment for employers who are on a
tax-rated basis and the second being in respect to the reimbursement of benefits paid
to employees of employers who are on a reimbursable basis, and, except when the
result would be inconsistent with the provisions of unemployment compensation law
pertinent to an employer on a reimbursable basis, the provisions of such law
applicable to an employer on a tax-rated basis are equally applicable to an employer
on a reimbursable basis, and conversely, except when the result would be inconsistent
with the provisions of unemployment compensation law pertinent to an employer on a
tax-rated basis, the provisions of such law applicable to an employer on a
reimbursable basis are equally applicable to an employer on a tax-rated basis.
12. "Domestic service" means all service for a person in the operation 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, profession, enterprise, or vocation.
13. "Educational institution" means an educational institution (including an institution of
higher education as defined in section 3304(f) of the Federal Unemployment Tax Act
[68A Stat. 439; 26 U.S.C. 3301 et seq.]) in which participants, trainees, or students are
offered an organized course of study or training which may be academic, technical,
trade, or preparation for gainful employment in a recognized occupation, designed to
transfer to them knowledge, skills, information, doctrines, attitudes, or abilities from, by,
or under the guidance of instructors or teachers, and 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.
14. "Employee" means every individual, whether citizen, alien, or minor, who performs
services for an employer in an employment subject to the North Dakota unemployment
compensation law and includes an officer of a corporation and a manager of a limited
liability company that is treated as a corporation for purposes of federal income
taxation or a manager of a limited liability company who is not a member.
15. "Employer" means:
a. Any employing unit which for some portion of a day, but not necessarily
simultaneously, in each of twenty different calendar weeks, whether or not such
weeks are or were consecutive, within either the current or the preceding
calendar year has or had in employment four or more individuals, irrespective of
whether the same individuals are or were employed in each such day. After
December 31, 1971, any employing unit which in any calendar quarter in either
the current or preceding calendar year paid for services in employment wages of
one thousand five hundred dollars or more, or which for some portion of a day in
each of twenty different calendar weeks, whether or not such 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. For the purpose of this definition, if any
week includes both December thirty-first and January first, the days that precede
January first must be deemed one calendar week and the days beginning
January first another such week.
b. Any individual who or employing unit which acquired the organization, trade, or
business, or substantially all of the assets thereof, of another who or which at the
time of such acquisition was an employer subject to the provisions of the North
Dakota unemployment compensation law, or who or which acquired a part of the
organization, trade, or business of another which at the time of such acquisition
was an employer subject to the provisions of the North Dakota unemployment
compensation law if such other would have been an employer under
subdivision a if such part had constituted its entire organization, trade, or
business.
c. Any individual who or employing unit which acquired the organization, trade, or
business, or substantially all the assets thereof, of another employing unit if the
employment record of such individual or employing unit subsequent to such
acquisition, together with the employment record of the acquired unit prior to such
acquisition, both within the same calendar year, would be sufficient to constitute
an employing unit an employer subject to the North Dakota unemployment
compensation law, under subdivision a. After December 31, 1971, any individual
who or employing unit which acquired the organization, trade, or business, or
substantially all the assets of another employing unit if such individual or
employing unit subsequent to such acquisition, and such acquired unit prior to
such acquisition, both within the same calendar quarter, together paid for services
in employment wages totaling one thousand five hundred dollars or more.
d. Repealed by S.L. 1963, ch. 331, § 1.
e. Any employing unit not an employer by reason of any of the provisions of this
subsection for which services in employment are performed with respect to which
such employing unit is liable for any federal tax against which credit may be taken
for contributions paid into a state unemployment compensation fund or an
employing unit which, as a condition for approval of the North Dakota
unemployment compensation law for full tax credit against the tax imposed by the
Federal Unemployment Tax Act [68A Stat. 439; 26 U.S.C. 3301 et seq.], is
required, pursuant to such Act, to be an "employer" under the North Dakota
unemployment compensation law.
f. Any employing unit which, having become an employer under any one of
subdivision a, b, c, e, h, i, j, or k has not under chapter 52-05 ceased to be an
employer subject to the North Dakota unemployment compensation law.
g. For the effective period of its election pursuant to sections 52-05-02 and
52-05-03, any other employing unit which has elected to become fully subject to
the North Dakota unemployment compensation law.
h. Any employing unit for which service in employment, as defined in subdivision f of
subsection 17, is performed after December 31, 1971.
i. Any employing unit for which service in employment, as defined in subdivision g
of subsection 17, is performed after December 31, 1971.
j. Any employing unit for which agricultural labor as defined in subdivision m of
subsection 17 is performed after December 31, 1977. In determining whether or
not an employing unit for which service other than agricultural labor is also
performed is an employer under subdivision a, h, i, or k, the wages earned or the
employment of an employee performing service in agricultural labor after
December 31, 1977, may not be taken into account. However, if an employing
unit is determined an employer of agricultural labor, such employing unit must be
determined an employer for the purposes of subdivision a.
k. Any employing unit for which domestic service in employment as defined in
subdivision n of subsection 17 is performed after December 31, 1977. In
determining whether or not an employing unit for which service other than
domestic service is also performed is an employer under subdivision a, h, i, or j,
the wages earned or the employment of an employee performing domestic
service after December 31, 1977, may not be taken into account.
l. The term "employer" includes an Indian tribe for which service in employment as
defined under the North Dakota unemployment compensation law is performed.
16. "Employing unit" means any individual or type of organization including any
partnership, association, trust, estate, joint-stock company, insurance company,
corporation, or limited liability company, whether domestic or foreign, or the receiver,
trustee in bankruptcy, trustee or successor of any of the foregoing, or the legal
representative of a deceased person, which has or subsequent to January 1, 1936,
had one or more individuals performing services for it within this state and:
a. All individuals performing services within this state for any employing unit which
maintains two or more separate establishments within this state must be deemed
to be performing services for a single employing unit for all the purposes of the
North Dakota unemployment compensation law;
b. Whenever any employing unit contracts with or has under it any contractor or
subcontractor for any work which is part of its usual trade, occupation, profession,
or business, unless the employing unit as well as each such contractor or
subcontractor is an employer by reason of subsection 15, the employing unit, for
all purposes of the North Dakota unemployment compensation law, must be
deemed to employ each individual in the service of each such contractor for each
day during which such individual is engaged solely in performing such work,
except that each such contractor or subcontractor who is an employer by reason
of subsection 15 is liable alone for the employer's contributions measured by
wages to individuals in the person's service; and
c. Each individual employed to perform or to assist in performing the work of any
person in the service of an employing unit must be deemed to be engaged by
such employing unit for all the purposes of the North Dakota unemployment
compensation law whether such individual was hired or paid directly by such
employing unit or by such person, if the employing unit had actual or constructive
knowledge of the employment.
17. "Employment" means:
a. Any service performed prior to January 1, 1972, which was employment as
defined in this subsection prior to such date, and subject to the other provisions of
this subsection, service performed after December 31, 1971, including service in
interstate commerce, by:
(1) Any officer of a corporation. If a corporate officer is employed by a
corporation in which one-fourth or more of the ownership interest, however
designated, is owned or controlled by the officer or by the officer's parent,
child, or spouse, or by any combination of them, the corporation with the
concurrence of the officer may exclude that officer's service from
employment as of the first day of January of any calendar year if, during
January of that year, the corporation files a written application to exclude the
officer's service from employment or as of the formation of the corporation if,
within sixty days of the formation, the corporation files a written application
to exclude the officer's service from employment.
(2) Certain managers of limited liability companies. If a limited liability company
manager is employed by a limited liability company in which one-fourth or
more of the ownership interest, however designated, is owned or controlled
by the manager or by the manager's parent, child, spouse, or by any
combination of them, the limited liability company with the concurrence of
the manager may exclude that manager's service from employment as of
the first day of January of any calendar year if, during January of that year,
the limited liability company files a written application to exclude the
manager's service from employment or as of formation of the limited liability
company if, within sixty days of the formation, the limited liability company
files a written application to exclude the manager's service from
employment. This exclusion from employment does not apply to any limited
liability company that is wholly owned by or operates as an Indian tribe,
state or local government, or nonprofit organization with respect to services
performed for those entities which are required by federal law to be covered
under the North Dakota unemployment compensation law.
(3) Any individual who, under the provisions of subdivision e, has the status of
an employee.
(4) Any individual other than an individual who is an employee under
paragraph 1, 2, or 3 who performs services for remuneration for any person:
(a) As an agent-driver or commission-driver engaged in distributing meat
products, vegetable products, fruit products, bakery products,
beverages other than milk, or laundry or drycleaning services, for the
person's principal.
(b) 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, the person's principal, except for
sideline sales activities on behalf of some other person, of orders from
wholesalers, retailers, contractors, or operators of hotels, restaurants,
or other similar establishments for merchandise for resale or supplies
for use in their business operations.
For purposes of this paragraph, the term "employment" includes services
described in either subparagraph a or b performed after December 31,
1971, only if the contract of service contemplates that substantially all of the
services are to be performed personally by such individual; 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
the services are not in the nature of a single transaction that is not part of a
continuing relationship with the person for whom the services are
performed.
b. An individual's entire service, performed within or both within and without this
state if the service is localized in this state.
c. Services covered by an election pursuant to chapter 52-05.
d. Services covered by an arrangement pursuant to sections 52-02-14 and 52-02-15
between the bureau and the agency charged with the administration of any other
state or federal unemployment compensation law, pursuant to which all services
performed by an individual for an employing unit are deemed to be performed
entirely within this state, must be deemed to be employment if the bureau 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.
e. Services performed by an individual for wages or under any contract of hire must
be deemed to be employment subject to the North Dakota unemployment
compensation law unless it is shown that the individual is an independent
contractor as determined by the "common law" test.
f. Service performed after December 31, 1971, by an individual in the employ of this
state or any of its instrumentalities, or in the employ of this state and one or more
other states or their instrumentalities, for a hospital or institution of higher
education located in this state; provided, that such service is excluded from
"employment" as defined in the Federal Unemployment Tax Act [68A Stat. 439;
26 U.S.C. 3301 et seq.] solely by reason of section 3306(c)(7) of that Act and is
not excluded from "employment" under subdivision h. Service performed after
December 31, 1977, in the employ of this state or any of its instrumentalities or
any political subdivision thereof or any of its instrumentalities or any
instrumentality of any of the foregoing and one or more other states or political
subdivisions; provided, that such service is excluded from "employment" as
defined in the Federal Unemployment Tax Act [68A Stat. 439; 26 U.S.C. 3301
et seq.] by section 3306(c)(7) of that Act and is not excluded from "employment"
as enumerated under subdivision h.
g. Service performed after December 31, 1971, by an individual in the employ of a
religious, charitable, educational, or other organization but only if the following
conditions are met:
(1) The service is excluded from "employment" as defined in the Federal
Unemployment Tax Act [68A Stat. 439; 26 U.S.C. 3301 et seq.] solely by
reason of section 3306(c)(8) of that Act; and
(2) The organization had four or more individuals in employment for some
portion of a day in each of twenty 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.
h. For the purposes of subdivisions f and g, the term "employment" does not apply
to service performed:
(1) In the employ of:
(a) A church or convention or association of churches; or
(b) 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.
(2) By a duly ordained, commissioned, or licensed minister of a church in the
exercise of the person's ministry or by a member of a religious order in the
exercise of duties required by such order.
(3) Prior to January 1, 1978, in the employ of a school which is not an institution
of higher education and after December 31, 1977, in the employ of a
governmental entity referred to in subdivision f if such service is performed
by an individual in the exercise of duties:
(a) As an elected official.
(b) As a member of a legislative body, or a member of the judiciary, of a
state or political subdivision.
(c) As a member of the state national guard or air national guard.
(d) As an employee serving on a temporary basis in case of fire, storm,
snow, earthquake, flood, or similar emergency.
(e) In a position which, under or pursuant to the laws of this state, is
designated as a major nontenured policymaking or advisory position,
the performance of the duties of which ordinarily does not require
more than eight hours per week.
(4) In a facility conducted for the purpose of carrying out a program of
rehabilitation for individuals whose earning capacity is impaired by age or
physical or mental deficiency or injury or 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.
(5) As part of an unemployment work-relief or work-training program assisted or
financed in whole or in part by any federal agency or an agency of a state or
political subdivision thereof, by an individual receiving such work relief or
work training.
(6) Prior to January 1, 1978, for a hospital in a state prison or other state
correctional institution by an inmate of the prison or correctional institution
and after December 31, 1977, by an inmate of a custodial or penal
institution.
(7) As an election official or election worker if the amount of remuneration
received by the individual during the calendar year for services as an
election official or election worker is less than one thousand dollars.
i. The term "employment" includes the service of an individual who is a citizen of
the United States, performed outside the United States (except in Canada), after
December 31, 1971, and after December 31, 1976, in the case of the Virgin
Islands, in the employ of an American employer (other than service which is
deemed "employment" under the provisions of subdivision b and subsection 28 or
the parallel provisions of another state's law), if:
(1) The employer's principal place of business in the United States is located in
this state; or
(2) 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;
(b) The employer is a corporation or limited liability company 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 one other state; or
(3) None of the criteria of paragraphs 1 and 2 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.
(4) An "American employer", for purposes of this subdivision, means a person
who is:
(a) An individual who is a resident of the United States;
(b) A partnership if two-thirds or more of the partners are residents of the
United States;
(c) A trust, if all of the trustees are residents of the United States;
(d) A corporation organized under the laws of the United States or of any
state; or
(e) A limited liability company organized under the laws of the United
States or of any state.
(5) The term "United States" for purposes of this subdivision includes the
states, the District of Columbia, the Commonwealth of Puerto Rico, and the
Virgin Islands.
j. Notwithstanding subdivision b, all service performed after December 31, 1971, by
an officer or member of the crew of an American vessel on or in connection with
such vessel, if the operating office, from which the operations of such vessel
operating on navigable waters within, or within and without, the United States are
ordinarily and regularly supervised, managed, directed, and controlled is within
this state.
k. Notwithstanding any other provision of this subsection, 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 [68A Stat. 439; 26 U.S.C. 3301
et seq.] is required to be covered under the North Dakota unemployment
compensation law.
l. An individual's service, wherever performed within the United States, the Virgin
Islands, or Canada, if:
(1) Such service is not covered under the unemployment compensation law of
any other state, the Virgin Islands, or Canada; and
(2) The place from which the service is directed or controlled is in this state.
m. Service performed by an individual in agricultural labor as defined in subdivision a
of subsection 18 when:
(1) Such service is performed for a person who:
(a) During any calendar quarter in either the current or the preceding
calendar year paid remuneration in cash of twenty thousand dollars or
more to individuals employed in agricultural labor (not taking into
account service in agricultural labor performed by an alien referred to
in paragraph 2); or
(b) For some portion of a day in each of twenty different calendar weeks,
whether such weeks were consecutive, in either the current or the
preceding calendar year, employed in agricultural labor (not taking into
account service in agricultural labor by an alien referred to in
paragraph 2) ten or more individuals, regardless of whether they were
employed at the same moment of time.
(2) Such 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 sections 214(c) and 101(a)(15)(H)(ii)(A) of the
Immigration and Nationality Act [8 U.S.C. 1101(a)(15)(H)(ii)(A)].
(3) For the purposes of this subdivision, any individual who is a member of a
crew furnished by a crew leader to perform service in agricultural labor for
any other person shall be treated as an employee of such crew leader:
(a) If such crew leader holds a valid certificate of registration under the
Farm Labor Contractor Registration Act of 1963 [Pub. L. 88-582; 78
Stat. 920; 7 U.S.C. 2041 et seq.]; or substantially all the members of
such crew operate or maintain tractors, mechanized harvesting or
crop-dusting equipment, or any other mechanized equipment, which is
provided by such crew leader; and
(b) If such individual is not an employee of such other person within the
meaning of subdivision a.
(4) For the purposes of this subdivision, 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 such crew leader
under paragraph 3:
(a) Such other person and not the crew leader must be treated as the
employer of such individual; and
(b) Such other person must be treated as having paid cash remuneration
to such individual in an amount equal to the amount of cash
remuneration paid to such individual by the crew leader (either on the
crew leader's own behalf or on behalf of such other person) for the
service in agricultural labor performed for such other person.
(5) For the purposes of this subdivision, the term "crew leader" means an
individual who:
(a) Furnishes individuals to perform service in agricultural labor for any
other person;
(b) Pays (either on the crew leader's own behalf or on behalf of such
other person) the individuals so furnished by the crew leader for the
service in agricultural labor performed by them; and
(c) Has not entered into a written agreement with such other person
under which such individual is designated as an employee of such
other person.
n. The term "employment" includes domestic service after December 31, 1977, 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 one thousand dollars or
more to individuals employed in such domestic service in any calendar quarter in
the current or preceding calendar year.
o. The term "employment" includes service performed in the employ of an Indian
tribe, as defined in section 3306(u) of the Federal Unemployment Tax Act,
provided the service is excluded from "employment" as defined in the Federal
Unemployment Tax Act solely by reason of section 3306(c)(7) of the Federal
Unemployment Tax Act, and is not otherwise excluded from employment under
the North Dakota unemployment compensation law. For purposes of this
subdivision, the exclusions from employment in subdivision h are applicable to
services performed in the employ of an Indian tribe.
18. "Employment" does not include:
a. Service performed by an individual in agricultural labor. For purposes of this
subdivision, the term "agricultural labor" means:
(1) Any service performed prior to January 1, 1972, which was agricultural labor
as defined in this subdivision prior to such date; and
(2) Remunerated service performed after December 31, 1971, in agricultural
labor as defined in section 3306(k) of the Federal Unemployment Tax Act
[68A Stat. 439; 26 U.S.C. 3301 et seq.].
b. Domestic service in a private home, local college club, or local chapter of a
college fraternity or sorority, except as provided in subdivision n of subsection 17.
c. Repealed by S.L. 1971, ch. 475, § 19.
d. Service not in the course of the employing unit's trade or business performed
after January 1, 1951, in any calendar quarter by an individual, unless the cash
remuneration paid for such service is fifty dollars or more and such service is
performed by an individual who is regularly employed by such employing unit to
perform such service. For the purposes of the North Dakota unemployment
compensation law, an individual must be deemed to be regularly employed to
perform service not in the course of an employing unit's trade or business during
a calendar quarter only if on each of some twenty-four days during such quarter
or during the immediately preceding quarter, such individual performed such
service for some portion of a day.
e. Service performed by an individual in the employ of the individual's son, daughter,
or spouse, and service performed by a minor in the employ of the minor's father
or mother and dwelling in the household of the minor's father or mother.
f. Service performed in the employ of the United States government or an
instrumentality of the United States exempt under the Constitution of the United
States from the contributions imposed by the North Dakota unemployment
compensation law, except that to the extent that the Congress of the United
States shall permit states to require any instrumentalities of the United States to
make payments into an unemployment fund under a state unemployment
compensation law, all of the provisions of the North Dakota unemployment
compensation law are 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; but if this state is not certified for any year by the social security
board under subsection c of section 3304 of the federal Internal Revenue Code,
the payments required of such instrumentalities with respect to such year must be
refunded by the bureau from the fund in the same manner and within the same
period as is provided in section 52-04-14 with respect to contributions
erroneously collected.
g. Service performed in the employ of this state or of any other state, or of any
political subdivision thereof, or of any instrumentality of any one or more of the
foregoing which is owned wholly by this state or by any one or more states or
political subdivisions, and any service performed in the employ of any
instrumentality of this state or of one or more states or political subdivisions to the
extent that the instrumentality is, with respect to such service, exempt under the
Constitution of the United States from the tax imposed by section 3301 of the
federal Internal Revenue Code, except that this provision does not apply to
coverage pursuant to subsection 17 and section 52-05-03.
h. Service with respect to which unemployment is payable under an unemployment
compensation system established by an act of the Congress of the United States.
i. Service performed:
(1) 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 such service is less than fifty dollars.
(2) Repealed by S.L. 1973, ch. 391, § 22.
(3) In the employ of a voluntary employee's beneficiary association providing for
the payment of life, sick, accident, or other benefits to the members of such
association or their dependents, if:
(a) No part of its net earnings inures, other than through such payments,
to the benefit of any private shareholder or individual; and
(b) Eighty-five percent or more of the income consists of amounts
collected from members for the sole purpose of making such
payments and meeting expenses.
(4) In the employ of a voluntary employees' beneficiary association providing for
the payment of life, sick, accident, or other benefits to the members of such
association or their dependents or their designated beneficiaries, if:
(a) Admission to membership in such association is limited to individuals
who are officers or employees of the United States government; and
(b) No part of the net earnings of such association inures, other than
through such payments, to the benefit of any private shareholder or
individual.
(5) In any calendar quarter in the employ of a school, college, or university, if
such service is performed by a student who is enrolled and regularly is
attending classes at such school, college, or university, or by the spouse of
such a student, if such spouse is advised at the time such spouse
commences to perform such service, that:
(a) The employment of such spouse to perform such service is provided
under a program to provide financial assistance to such student by
such school, college, or university; and
(b) Such employment will not be covered by any program of
unemployment insurance.
(6) In the employ of a corporation, community chest, fund, or foundation,
organized and operated exclusively for religious, charitable, scientific,
literary, or educational purposes, or for the prevention of cruelty to children
or animals, no part of the net earnings of which inures to the benefit of any
private shareholder or individual, and no substantial part of the activities of
which is carrying on propaganda, or otherwise attempting, to influence
legislation, except as provided in subdivision g of subsection 17.
(7) As a student nurse in the employ of a hospital or a nurses' training school by
an individual who is enrolled and regularly is attending classes in a nurses'
training school chartered or approved pursuant to state law and service
performed as an intern in the employ of a hospital by an individual who has
completed a four-year course in a medical school chartered or approved
pursuant to a state law.
(8) By an individual for a person as an insurance agent, as an insurance
solicitor, as a real estate salesman, or as a securities salesman, if all such
services performed by such individual for such persons is performed for
remuneration solely by way of commission.
(9) By an individual under the age of eighteen in delivery or distribution of
newspapers or shopping news, not including delivery or distribution to any
point for subsequent delivery or distribution.
(10) By an individual who is enrolled at a nonprofit or public educational
institution which normally maintains a regular faculty and curriculum and
normally has a regularly organized body of students in attendance at the
place where its educational activities are carried on as a student in a
full-time program, taken for credit at such institution, which combines
academic instruction with work experience, if such service is an integral part
of such program, and such institution has so certified to the employer,
except that this paragraph does not apply to service performed in a program
established for or on behalf of an employer or group of employees.
(11) In the employ of a hospital, if such service is performed by a patient of the
hospital, as defined in subsection 25.
(12) By an individual under the age of eighteen as a golf caddy, except for
service described in subdivisions f and g of subsection 17.
j. Service covered by an arrangement between the bureau and the agency charged
with the administration of any other state or federal unemployment compensation
law pursuant to which all services performed by an individual for an employing
unit during the period covered by such employing unit's duly approved election
are deemed to be performed entirely within such agency's state.
k. Service performed for a private for-profit person or entity by an individual as a
landman if substantially all remuneration, including payment on the basis of a
daily rate, paid in cash or otherwise for the performance of the service is directly
related to the completion by the individual of the specific tasks contracted for
rather than to the number of hours worked by the individual, and the services are
performed under a written contract between the individual and the person for
whom the services are performed which provides that the individual is to be
treated as an independent contractor and not as an employee with respect to the
services provided under the contract. For purposes of this subdivision, "landman"
means a land professional who has been engaged primarily in:
(1) Negotiating the acquisition or divestiture of mineral rights;
(2) Negotiating business agreements that provide for the exploration for or
development of minerals;
(3) Determining ownership of minerals through research of public and private
records;
(4) Reviewing the status of title, curing title defects, and otherwise reducing title
risk associated with ownership of minerals;
(5) Managing rights or obligations derived from ownership of interests and
minerals; or
(6) Activities to secure the unitization or pooling of interests in minerals.
l. Service performed by an owner of a general partnership, limited partnership,
limited liability partnership, limited liability limited partnership, or a limited liability
company, unless the organization is treated as a corporation for purposes of
federal income taxation.
m. Service performed as a participant in an Americorps program authorized and
funded by the National and Community Service Act of 1990 [Pub. L. 101-610;
42 U.S.C. 12501 et seq.].
19. "Employment office" means a free public employment office or branch thereof
operated by this or any other state as a part of a state-controlled system of public
employment offices or by a federal agency charged with the administration of an
unemployment compensation program or free public employment offices.
20. "Executive director" means the executive director of job service North Dakota.
21. "Extended benefits" means benefits (including benefits payable to federal civilian
employees and to ex-servicemen pursuant to 5 U.S.C. chapter 85) payable to an
individual under the provisions of chapter 52-07.1 for weeks of unemployment in the
individual's eligibility period.
22. "Fund" means the unemployment compensation fund established by the North Dakota
unemployment compensation law, to which all contributions required and from which
all benefits provided under the North Dakota unemployment compensation law must
be paid.
23. The term "governmental unit" means the state of North Dakota and all its political
subdivisions, and all of its departments and instrumentalities.
24. "Gross misconduct" means misconduct involving assault and battery, or the malicious
destruction of property, or the theft of money or property.
25. "Hospital" means an institution which has been licensed as a hospital by the licensing
authority of the state of North Dakota.
26. "Included and excluded service". If the service performed during one-half or more of
any pay period by an individual for the person employing the individual constitutes
employment, all the services of such individual for such period must be deemed to be
employment, but if the service performed during more than one-half of any such pay
period by an individual for the person employing the individual does not constitute
employment, then none of the services of such individual for such period may be
deemed to be employment. As used in this subsection, the term "pay period" means a
period, of not more than thirty-one consecutive days, for which a payment of
remuneration ordinarily is made to the individual by the person employing the
individual. This subsection is not applicable with respect to services performed in a pay
period by an individual for the person employing the individual, when any of such
service is excepted by subdivision h of subsection 18.
27. "Institution of higher education", for the purposes of the North Dakota unemployment
compensation law, means an educational institution which:
a. Admits as regular students only individuals having a certificate of graduation from
a high school or the recognized equivalent of such a certificate;
b. Is legally authorized in this state to provide a program of education beyond high
school;
c. 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
d. Is a public or other nonprofit institution.
Notwithstanding any of the foregoing provisions of this subsection, all colleges and
universities in this state are institutions of higher education for purposes of the North
Dakota unemployment compensation law.
28. "Localized service". Service must be deemed to be localized within a state if:
a. The service is performed entirely within such state; or
b. The service is performed both within and without such state, but the service
performed without such state is incidental to the individual's service within the
state, for example, is temporary or transitory in nature or consists of isolated
transactions.
29. "State" includes, in addition to the states of the United States of America, Puerto Rico,
the District of Columbia, and the Virgin Islands.
30. "Unemployed". An individual is "unemployed" with respect to any week during which
the individual performs no services and with respect to which no wages are payable to
the individual, or with respect to any week during which the individual is substantially
unemployed and the wages payable to the individual with respect to such week are
less than the individual's weekly benefit amount. For the purposes of this subsection,
wages are payable with respect to the weeks for which they were reasonably intended
to be payable, irrespective of whether services were performed in those weeks. The
bureau shall prescribe regulations applicable to unemployed individuals making such
distinctions in the procedures as to total unemployment, part-total unemployment,
partial unemployment of individuals attached to their regular jobs, and other forms of
work, as the bureau deems necessary.
31. "Wages" means all remuneration for service from whatever source, including
commissions and bonuses and the cash value of all remuneration in any medium other
than cash. Gratuities customarily received by an individual in the course of the
individual's service from persons other than the individual's employing unit must be
treated as wages received from the individual's employing unit. After January 1, 1951,
backpay awarded under any statute of this state or of the United States must be
treated as wages. The reasonable cash value of remuneration in any medium other
than cash, and the reasonable amount of gratuities, must be estimated and
determined in accordance with rules as prescribed by the bureau. For the purpose of a
determination of insured status only, backpay awards after January 1, 1951, must be
allocated to the quarters with respect to which they were paid. If the remuneration of
an individual is not based upon a fixed period or duration of time or if the individual's
wages are paid at irregular intervals or in such manner as not to extend regularly over
a period of employment, for the purposes of a determination of insured status only, the
wages must be allocated to weeks or quarters in accordance with regulations
prescribed by the bureau. Such regulations must, so far as possible, produce results
reasonably similar to those which would prevail if the individual were paid the
individual's wages at regular intervals. The term "wages" does not include:
a. The amount of any payment made after January 1, 1951, including any amount
paid by an employing unit for insurance or annuities, or into a fund, to provide for
any such payment to, or on behalf of, an individual or any of the individual's
dependents under a plan or system established by an employing unit which
makes provision generally for individuals performing service for it or for such
individuals generally and their dependents or for a class or classes of such
individuals, or for a class or classes of such individuals and their dependents, on
account of:
(1) Sickness or accident disability but, in the case of payments made to an
employee or any of the employee's dependents, this paragraph excludes
from the term "wages" only payments which are received under a workforce
safety and insurance law;
(2) Medical and hospitalization expenses in connection with sickness or
accident disability; or
(3) Death.
b. The amount of any payment on account of sickness or accident disability, or
medical or hospitalization expenses in connection with sickness or accident
disability, made after January 1, 1951, by an employing unit to, or on behalf of, an
individual performing services for it after the expiration of six calendar months
following the last calendar month in which the individual performed services for
such employing unit.
c. The amount of any payment made after January 1, 1951, by an employing unit to,
or on behalf of, an individual performing services for it or the individual's
beneficiary:
(1) From or to a trust described in section 401(a) of the federal Internal
Revenue Code which is exempt from tax under section 501(a) of the federal
Internal Revenue Code at the time of such payment unless such payment is
made to an individual performing services for the trust as remuneration for
such services and not as a beneficiary of the trust; or
(2) Under or to an annuity plan which, at the time of such payments, is a plan
described in section 403(a) of the federal Internal Revenue Code.
d. The amount of any payment made by an employing unit, without deduction from
the remuneration of the individual in its employ, of the tax imposed upon an
individual in its employ under section 3101 of the federal Internal Revenue Code
with respect to services performed after January 1, 1951.
e. Remuneration paid after January 1, 1951, in any medium other than cash to an
individual for services not in the course of the employing unit's trade or business.
f. Dismissal payments before December 31, 1951, which the employing unit legally
is not required to make.
g. Any payment made to, or on behalf of, an employee or the employee's
beneficiary under or to an annuity contract described in section 403(b) of the
federal Internal Revenue Code, other than a payment for the purchase of such
contract which is made by reason of a salary reduction agreement whether
evidenced by a written instrument or otherwise, under or to an exempt
governmental deferred compensation plan as defined in section 3121(v)(3) of the
federal Internal Revenue Code, or to supplemental pension benefits under a plan
or trust described in any of the foregoing provisions to take into account some
portion or all of the increase in the cost of living as determined by the secretary of
labor since retirement but only if such supplemental payments are under a plan
which is treated as a welfare plan under section 3(2)(B)(ii) of the Employee
Retirement Income Security Act of 1974.
h. Any payment made to, or on behalf of, an employee or the employee's
beneficiary under a simplified employee pension if, at the time of the payment, it
is reasonable to believe that the employee will be entitled to a deduction under
section 219(b)(2) of the federal Internal Revenue Code for such payment.
i. 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.
j. Nothing in this subsection excludes from the term "wages" any employer
contribution under a qualified cash or deferred arrangement as defined in section
401(k) of the federal Internal Revenue Code to the extent not included in gross
income by reason of section 402(a)(8) of the federal Internal Revenue Code, or
any amount treated as an employer contribution under section 414(h)(2) of the
federal Internal Revenue Code.
k. Any amount deferred under a nonqualified deferred compensation plan must be
taken into account for purposes of this chapter 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
subdivision and the income attributable thereto may not thereafter be treated as
wages for purposes of this chapter. For purposes of this subdivision, the term
"nonqualified deferred compensation plan" means any plan or other arrangement
for deferral of compensation other than a plan described in subdivisions c, g, and
h.
l. Payments that qualify as supplemental unemployment compensation paid by an
employer to former employees if those payments are paid pursuant to a plan that
meets the following requirements:
(1) Benefits are paid only to unemployed former employees who are laid off by
the employer;
(2) Eligibility for benefits depends on meeting prescribed conditions after
termination;
(3) The amount of weekly benefits payable is based upon state unemployment
benefits, other compensation allowable under state law, and the amount of
regular weekly pay of that former employee;
(4) The duration of the benefits is affected by the fund level and employee
seniority;
(5) The right to benefits does not accrue until a prescribed period after
termination;
(6) Benefits are not attributable to the performance of particular services;
(7) No employee has any right to the benefits until qualified and eligible to
receive benefits; and
(8) Benefits may not be paid in a lump sum.
32. "Week" means such period of seven consecutive days, as the bureau may prescribe
by regulation. The bureau by regulation may prescribe that a week must be deemed to
be "in", "within", or "during" that benefit year which includes the greater part of such
week.