ASSEMBLY, No. 460
STATE OF NEW JERSEY
Introduced Pending Technical Review by Legislative Counsel
PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION
By Assemblyman ROMA
An Act providing self-employment assistance and entrepreneurial training and amending and supplementing chapter 21 of Title 43 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) This act shall be known and may be cited as the "Self-Employment Assistance and Entrepreneurial Training Act."
2. (New section) The Legislature finds and declares that a significant percentage of new jobs in this country are created by small businesses and that approximately 12 percent of the persons employed in the United States are self-employed, mostly in small businesses. In the wake of recent corporate downsizing, it is imperative that ways are found to help unemployed individuals, including professional and technical employees, to re-enter the labor force. Experience in numerous other states and in certain urban areas of New Jersey has shown that "micro-lending," or carefully targeting small loans to individuals with well-developed, realistic business plans, has been successful in helping those individuals to establish small businesses and become self-employed entrepreneurs. This approach is particularly successful where the loan recipients are part of a peer group that provides support, advice and assistance, and helps to ensure loan repayments.
3. (New section) As used in this 1996 amendatory and supplementary act:
"Authority" means the New Jersey Economic Development Authority established pursuant to section 4 of P.L.1974, c.80 (C.34:1B-4).
"Full-time basis" with respect to the amount of time spent participating in self-employment assistance activities shall have the meaning contained in regulations adopted by the Commissioner of Labor.
"Peer group" means a group of not more than twenty participating individuals who provide mutual assistance and support for each other's efforts to establish businesses and become self-employed entrepreneurs.
"Reemployment services" means job search assistance and job placement services, including counseling, testing, assessment, job search workshops, job clubs, referrals to employers and providing occupational and labor market information.
"Regular benefits" means benefits payable to an individual under the "unemployment compensation law" (R.S.43:21-1 et seq.), including benefits payable to Federal civilian employees and to ex-servicemembers pursuant to 5 U.S.C. chapter 85, but not including additional benefits provided pursuant to P.L.1992, c.47 (C.43:21-57 et seq.) or extended benefits.
"Self-employment assistance activities" means activities, approved by the division, in which an individual participates for the purpose of establishing a business and becoming self-employed, including: activities in which the individual participates in connection with self-employment assistance services; and other activities in which the individual engages to establish the business.
"Self-employment assistance allowance" means an allowance, payable in lieu of regular benefits and from the unemployment compensation fund, to an individual participating in self-employment assistance activities who meets the requirements of this 1996 amendatory and supplementary act.
"Self-employment Assistance Financing Program" means the Self-employment Assistance Financing Program established pursuant to section 4 of this 1996 amendatory and supplementary act.
"Self-employment assistance services" means services provided to an individual, including entrepreneurial training, business counseling, and technical assistance, to help the individual to develop a business plan, establish a business and become self-employed.
"Worker profiling system" means the worker profiling system established pursuant to section 2 of P.L.1992, c.46 (C.43:21-4.1).
4. (New section) a. There is created in the authority a Self-employment Assistance Financing Program which shall provide loans and loan guarantees to individuals selected by the authority from those who are referred to the authority for self-employment assistance services pursuant to subsection a. of section 5 of this 1996 amendatory and supplementary act.
b. The authority shall set the terms of the loans and loan guarantees. The authority, notwithstanding any provisions of "The New Jersey Economic Development Authority Act," P.L.1974, C.80 (C.34:1B-1 et seq.), shall develop flexible underwriting criteria to reflect the special financing requirements for loans and loan guarantees made under the program which are consistant with the purposes of this 1996 amendatory and supplementary act. The loans and loan guarantees, self-employment assistance services provided pursuant to subsection a. of section 5 of this 1996 amendatory and supplementary act and all related administrative expenses may be funded from:
(1) Funds available from existing authority loan and loan guarantee programs;
(2) The Economic Growth Account for Business Programs, within the Economic Recovery Fund, established pursuant to the "Economic Recovery Fund Act," P.L.1992, c.16 (C.34:1B-7.10 et seq.);
(3) Program loan repayments;
(4) Any funds made available by the authority or appropriated for the program; and
(5) Any other appropriate sources of funding, including funding from other State agencies or authorities.
c. The authority may, when making a decision regarding the granting of a loan or loan guarantee to an individual who is a member of a peer group, take into consideration the recommendation of the peer group. When determining whether to make a loan or loan guarantee to a participant of a peer group, the authority may take into consideration how reliable other participants in the group have been in repayments of previous loans.
d. After consultation with the Department of Labor and the Department of Commerce and Economic Development, the authority shall report to the Governor and the Legislature within two years of the effective date of this act, and not later than September 15 of each third year thereafter. Each report shall include information on the number of participants and peer groups, the amount of loans or loan guarantees outstanding, the number of loan or loan guarantee repayments and defaults, the types of businesses that program participants have established and are operating, the number of business successes and failures, and any recommendations of the authority regarding the expansion of, or changes in, the program.
5. (New section) a. Any unemployed individual who qualifies for regular benefits and is identified through the worker profiling system as likely to exhaust regular benefits may apply to the division for a self-employment assistance allowance. The division shall review the application to determine whether to refer the individual to the authority for self-employment assistance services. If the individual is referred and if the authority, based on the individual's skills, employment experience or other qualifications, determines that the individual is able to successfully develop and manage a small business, the authority may make the self-employment assistance services available to the individual. To make the services available, the authority shall collaborate with the New Jersey Small Business Development Center Program, the Department of Commerce and Economic Development and any community-based agency, non-profit organization, educational institution or other public or private entity deemed competent and selected by the authority and the division to provide the services. The provision of the services shall be, to the extent feasible, based predominantly on peer groups, the formation of which shall be facilitated by the authority and the collaborating entities. The primary purpose of the services provided to an individual prior to approval of the payment of a self-employment assistance allowance to the individual is to assist the individual to meet prerequisites set by the division for receiving the allowance, which shall include the development of an acceptable business plan, and the obtaining of an adequate commitment for any continued services needed after payment of the allowance is approved and the obtaining of adequate commitment for the financing needed to implement the plan, including financing from the Self-employment Assistance Financing Program or financing from private sources. Upon certification by the authority that the prerequisites have been met, the division may approve payment of the self-employment assistance allowance to the individual pursuant to the provisions of this section. The authority shall monitor each individual who is referred by the division to the authority for self-employment services and notify the division whenever the individual is not participating on a full-time basis in self-employment activities authorized by the division.
b. The weekly self-employment assistance allowance payable pursuant to this section to an individual shall be equal to the weekly benefit amount for regular benefits. In no instance shall a self-employment assistance allowance and regular benefits be paid to an individual with respect to the same period. The sum of the allowance and regular benefits paid under this 1994 amendatory and supplementary act with respect to any benefit year shall not exceed the maximum benefit amount established for regular benefits alone with respect to that benefit year. The allowance shall not be paid for any week in which the individual does not participate, on a full-time basis, in self-employment assistance activities authorized by the division.
c. A self-employment assistance allowance shall be payable to an individual at the same interval, on the same terms, and subject to the same conditions as regular benefits, except as otherwise provided in this 1996 amendatory and supplementary act.
d. The aggregate number of individuals receiving self-employment assistance allowances at any time shall not exceed 0.5 percent of the number of individuals receiving regular benefits. The Commissioner of Labor shall, through regulations, prescribe the actions necessary to assure that the requirements of this subsection are met.
e. Self-employment assistance allowances shall be charged to employers in the same manner as provided for the charging of regular benefits.
f. The provisions of this section will shall apply to weeks beginning after the effective date of this 1996 amendatory and supplementary act and after any plan required by the United States Department of Labor is approved by that department. The authority provided by this section shall terminate as of the end of the week preceding the date when federal law no longer authorizes the provisions of this section, unless that date is a Saturday in which case the authority shall terminate as of that date.
6. (New section) The authority, the Department of Commerce and Economic Development, and the Department of Labor shall respectively adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), any rules and regulations necessary to effectuate the purposes of this 1996 amendatory and supplementary act.
7. R.S. 43:21-3 is amended to read as follows:
43:21-3. Benefits. (a) Payment of benefits.
All benefits shall be promptly paid from the fund in accordance with such regulations as may be prescribed hereunder.
(b) Weekly benefits for unemployment.
With respect to an individual's benefit year commencing on or after July 1, 1961, such individual, if eligible and unemployed (as defined in subsection (m) of R.S. 43:21-19), shall be paid an amount (except as to final payment) equal to his weekly benefit rate less any remuneration, other than remuneration from self-employment paid to an individual who is receiving a self-employment assistance allowance, paid or payable to him for such week in excess of 20% of his weekly benefit rate (fractional part of a dollar omitted) or $5.00, whichever is the greater; provided that such amount shall be computed to the next lower multiple of $1.00 if not already a multiple thereof.
(c) Weekly benefit rate.
(1) With respect to an individual whose benefit year commences after September 30, 1984, his weekly benefit rate under each determination shall be 60% of his average weekly wage, subject to a maximum of 56 2/3 % of the Statewide average weekly remuneration paid to workers by employers subject to this chapter (R.S. 43:21-1 et seq.), as determined and promulgated by the Commissioner of Labor; provided, however, that such individual's weekly benefit rate shall be computed to the next lower multiple of $1.00 if not already a multiple thereof.
(2) Dependency benefits.
(A) With respect to an individual whose benefit year commences after September 30, 1984, the individual's weekly benefit rate as determined in paragraph (1) of this subsection (c) will be increased by 7% for the first dependent and 4% each for the next two dependents (up to a maximum of three dependents), computed to the next lower multiple of $1.00 if not already a multiple thereof, except that the maximum weekly benefit rate payable for an individual claiming dependency benefits shall not exceed the maximum amount determined under paragraph (1) of this subsection (c).
(B) For the purposes of this paragraph (2), a dependent is defined as an individual's unemployed spouse or an unemployed unmarried child (including a stepchild or a legally adopted child) under the age of 19 or an unemployed unmarried child, who is attending an educational institution as defined in subsection (y) of R.S. 43:21-19 on a full-time basis and is under the age of 22. If an individual's spouse is employed during the week the individual files an initial claim for benefits, this paragraph (2) shall not apply. If both spouses establish a claim for benefits in accordance with the provisions of this chapter (R.S. 43:21-1 et seq.), only one shall be entitled to dependency benefits as provided in this paragraph (2).
(C) Any determination establishing dependency benefits under this paragraph (2) shall remain fixed for the duration of the individual's benefit year and shall not be increased or decreased unless it is determined by the division that the individual wrongfully claimed dependency benefits as a result of false or fraudulent representation.
(D) Notwithstanding the provisions of any other law, the division shall use every available administrative means to insure that dependency benefits are paid only to individuals who meet the requirements of this paragraph (2). These administrative actions may include, but shall not be limited to, the following:
(i) All married individuals claiming dependents under this paragraph (2) shall be required to provide the social security number of the individual's spouse. If the individual indicates that the spouse is unemployed, the division shall match the social security number of the spouse against available wage records to determine whether earnings were reported on the last quarterly earnings report filed by employers under R.S. 43:21-14 of this chapter. If earnings were reported, the division shall contact in writing the last employer to determine whether the spouse is currently employed.
(ii) Where a child is claimed as a dependent by an individual under this paragraph (2), the individual shall be required to provide to the division the most recent federal income tax return filed by the individual to assist the division in verifying the claim.
(3) For the purposes of this subsection (c), the "Statewide average weekly remuneration paid to workers by employers" shall be computed and determined by the Commissioner of Labor on or before September 1 of each year on the basis of one-fifty-second of the total remuneration reported for the preceding calendar year by employers subject to this chapter, divided by the average of the number of workers reported by such employers, and shall be effective as to benefit determinations in the calendar year following such computation and determination.
(d) Maximum total benefits.
(1) (A) With respect to an individual to whom benefits shall be payable for benefit years commencing on or after January 1, 1975 and prior to July 1, 1986, as provided in this section, such individual shall be entitled to receive, under each successive benefit determination relating to each of his base year employers, a total amount of benefits equal to three-quarters of his base weeks from the employer in question multiplied by his weekly benefit rate; but the amount of benefits thus resulting under any such determination made with respect to any employer shall be adjusted to the next lower multiple of $1.00 if not already a multiple thereof.
(B)(i) With respect to an individual for whom benefits shall be payable for benefit years commencing on or after July 1, 1986, as provided in this section, the individual shall be entitled to receive a total amount of benefits equal to three-quarters of the individual's base weeks with all employers in the base year multiplied by the individual's weekly benefit rate; but the amount of benefits thus resulting under that determination shall be adjusted to the next lower multiple of $1.00 if not already a multiple thereof.
(ii) Except that benefits paid to an individual for benefit years commencing on or after July 1, 1986 shall be charged against the accounts of the individual's base year employers in the following manner: Each week of benefits paid to an eligible individual shall be charged against each base year employer's account in the same proportion that the wages paid by each employer to the individual during the base year bear to the wages paid by all employers to that individual during the base year.
(iii) Wages earned during a base year, which had previously been used to establish a benefit year commencing prior to July 1, 1986, may also be used to establish benefit years commencing on or after July 1, 1986 but prior to October 1, 1987. No employer's account shall be charged for any benefits payable based on base year wages which may be used to establish entitlement under the provisions of this subparagraph (iii).
(2) No such individual shall be entitled to receive benefits under this chapter (R.S. 43:21-1 et seq.) in excess of 26 times his weekly benefit rate in any benefit year under either of subsections (c) and (f) of section 43:21-4 of this chapter (R.S. 43:21-1 et seq.). In the event that any individual qualifies for benefits under both of said subsections during any benefit year, the maximum total amount of benefits payable under said subsections combined to such individual during the benefit year shall be one and one-half times the maximum amount of benefits payable under one of said subsections.
(3) (Deleted by amendment, P.L.1984, c. 24.)
(cf: P.L.1984, c.24, s.1)
8. R.S. 43:21-4 is amended to read as follows:
43:21-4. Benefit eligibility conditions. An unemployed individual shall be eligible to receive benefits with respect to any week only if:
(a) The individual has filed a claim at an unemployment insurance claims office and thereafter continues to report at an employment service office or unemployment insurance claims office, as directed by the division in accordance with such regulations as the division may prescribe, except that the division may, by regulation, waive or alter either or both of the requirements of this subsection as to individuals attached to regular jobs, and as to such other types of cases or situations with respect to which the division finds that compliance with such requirements would be oppressive, or would be inconsistent with the purpose of this act; provided that no such regulation shall conflict with subsection (a) of R.S.43:21-3.
(b) The individual has made a claim for benefits in accordance with the provisions of subsection (a) of R.S.43:21-6.
(c) (1) The individual is able to work, and is available for work, and has demonstrated to be actively seeking work, except as hereinafter provided in this subsection or in subsection (f) of this section.
(2) The director may modify the requirement of actively seeking work if such modification of this requirement is warranted by economic conditions.
(3) No individual, who is otherwise eligible, shall be deemed ineligible, or unavailable for work, because the individual is on vacation, without pay, during said week, if said vacation is not the result of the individual's own action as distinguished from any collective action of a collective bargaining agent or other action beyond the individual's control.
(4) (A) Subject to such limitations and conditions as the division may prescribe, an individual, who is otherwise eligible, shall not be deemed unavailable for work or ineligible because the individual is attending a training program approved for the individual by the division to enhance the individual's employment opportunities or because the individual failed or refused to accept work while attending such program.
(B) For the purpose of this paragraph (4), any training program shall be regarded as approved by the division for the individual if the program and the individual meet the following requirements:
(i) The training is for a labor demand occupation and is likely to enhance the individual's marketable skills and earning power;
(ii) The training is provided by a competent and reliable private or public entity approved by the Commissioner of Labor [, which approval shall be made, if the "1992 Employment and Workforce Development Act," P.L.1992, c.43 (C.34:15D-1 et al.) is enacted,] pursuant to the provisions of section 8 of [that act] the "1992 New Jersey Employment and Workforce Development Act," P.L.1992, c.43 (C.34:15D-8);
(iii) The individual can reasonably be expected to complete the program, either during or after the period of benefits;
(iv) The training does not include on the job training or other training under which the individual is paid by an employer for work performed by the individual during the time that the individual receives benefits; and
(v) The individual enrolls in vocational training, remedial education or a combination of both on a full-time basis.
(C) If the requirements of subparagraph (B) of this paragraph (4) are met, the division shall not withhold approval of the training program for the individual for any of the following reasons:
(i) The training includes remedial basic skills education necessary for the individual to successfully complete the vocational component of the training;
(ii) The training is provided in connection with a program under which the individual may obtain a college degree, including a post-graduate degree;
(iii) The length of the training period under the program; or
(iv) The lack of a prior guarantee of employment upon completion of the training.
(D) For the purpose of this paragraph (4), "labor demand occupation" means an occupation for which there is or is likely to be an excess of demand over supply for adequately trained workers, including, but not limited to, an occupation designated as a labor demand occupation by the New Jersey Occupational Information Coordinating Committee pursuant to the provisions of subsection h. of section 1 of P.L.1987, c.457 (C.34:1A-76) or section 12 of P.L.1992, c.43 [(C.34:15D-12)] (C.34:1A-78).
(5) An unemployed individual, who is otherwise eligible, shall not be deemed unavailable for work or ineligible solely by reason of the individual's attendance before a court in response to a summons for service on a jury.
(6) An unemployed individual, who is otherwise eligible, shall not be deemed unavailable for work or ineligible solely by reason of the individual's attendance at the funeral of an immediate family member, provided that the duration of the attendance does not extend beyond a two day period.
For purposes of this paragraph, "immediate family member" includes any of the following individuals: father, mother, mother-in-law, father-in-law, grandmother, grandfather, grandchild, spouse, child, foster child, sister or brother of the unemployed individual and any relatives of the unemployed individual residing in the unemployed individual's household.
(7) No individual, who is otherwise eligible, shall be deemed ineligible or unavailable for work with respect to any week because, during that week, the individual fails or refuses to accept work while the individual is participating on a full-time basis in self-employment assistance activities authorized by the division, whether or not the individual is receiving a self-employment allowance during that week.
(8) Any individual who is determined to be likely to exhaust regular benefits and need reemployment services based on information obtained by the worker profiling system shall not be eligible to receive benefits if the individual fails to participate in available reemployment services to which the individual is referred by the division or in similar services, unless the division determines that:
(A) The individual has completed the reemployment services; or
(B) There is justifiable cause for the failure to participate, which shall include participation in employment and training, self-employment assistance activities or other activities authorized by the division to assist reemployment or enhance the marketable skills and earning power of the individual and which shall include any other circumstance indicated pursuant to this section in which an individual is not required to be available for and actively seeking work to receive benefits.
(d) The individual has been totally or partially unemployed for a waiting period of one week in the benefit year which includes that week. When benefits become payable with respect to the third consecutive week next following the waiting period, the individual shall be eligible to receive benefits as appropriate with respect to the waiting period. No week shall be counted as a week of unemployment for the purposes of this subsection:
(1) If benefits have been paid, or are payable with respect thereto; provided that the requirements of this paragraph shall be waived with respect to any benefits paid or payable for a waiting period as provided in this subsection;
(2) If it has constituted a waiting period week under the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et seq.);
(3) Unless the individual fulfills the requirements of subsections (a) and (c) of this section;
(4) If with respect thereto, claimant was disqualified for benefits in accordance with the provisions of subsection (d) of R.S.43:21-5.
(e) (1) With respect to a base year as defined in subsection (c) of R.S.43:21-19, the individual has established at least 20 base weeks as defined in paragraph (1) of subsection (t) of R.S.43:21-19, or, in those instances in which the individual has not established 20 base weeks, the individual has earned $2,200.00 for benefit years commencing prior to October 1, 1984; and, except as otherwise provided in paragraph (2) or paragraph (3) of this subsection, for benefit years commencing on or after October 1, 1984, the individual has earned 12 times the Statewide average weekly remuneration paid to workers, as determined under R.S.43:21-3(c), raised to the next higher multiple of $100.00 if not already a multiple thereof, or more in the individual's base year.
(2) Notwithstanding the provisions of paragraph (1) of this subsection, for benefit years commencing on or after October 1, 1984 and before January 1, 1985, an unemployed individual claiming benefits on the basis of service performed in the production and harvesting of agricultural crops shall, subject to the limitations of subsection (i) of R.S.43:21-19, be eligible to receive benefits if it appears that the individual has established at least 20 base weeks as defined in paragraph (2) of subsection (t) of R.S.43:21-19, or, in those instances in which the individual has not established 20 base weeks, the individual has earned $2,200.00.
(3) Notwithstanding the provisions of paragraph (1) of this subsection, an unemployed individual claiming benefits on the basis of service performed in the production and harvesting of agricultural crops shall, subject to the limitations of subsection (i) of R.S.43:21-19, be eligible to receive benefits if during his base year, as defined in subsection (c) of R.S.43:21-19, the individual:
(A) Has established at least 20 base weeks as defined in paragraph (1) of subsection (t) of R.S.43:21-19; or
(B) Has earned 12 times the Statewide average weekly remuneration paid to workers, as determined under R.S.43:21-3(c), raised to the next higher multiple of $100.00 if not already a multiple thereof, or more; or
(C) Has performed at least 770 hours of service in the production and harvesting of agricultural crops.
(4) The individual applying for benefits in any successive benefit year has earned at least six times his previous weekly benefit amount and has had four weeks of employment since the beginning of the immediately preceding benefit year. This provision shall be in addition to the earnings requirements specified in paragraph (1), (2), or (3) of this subsection, as applicable.
(f) (1) The individual has suffered any accident or sickness not compensable under the workers' compensation law, R.S.34:15-1 et seq. and resulting in the individual's total disability to perform any work for remuneration, and would be eligible to receive benefits under this chapter (R.S.43:21-1 et seq.) (without regard to the maximum amount of benefits payable during any benefit year) except for the inability to work and has furnished notice and proof of claim to the division, in accordance with its rules and regulations, and payment is not precluded by the provisions of R.S.43:21-3(d); provided, however, that benefits paid under this subsection (f) shall be computed on the basis of only those base year wages earned by the claimant as a "covered individual," as defined in R.S.43:21-27(b); provided further that no benefits shall be payable under this subsection to any individual:
(A) For any period during which such individual is not under the care of a legally licensed physician, dentist, optometrist, podiatrist, practicing psychologist or chiropractor;
(B) (Deleted by amendment, P.L.1980, c.90.)
(C) For any period of disability due to willfully or intentionally self-inflicted injury, or to injuries sustained in the perpetration by the individual of a crime of the first, second or third degree;
(D) For any week with respect to which or a part of which the individual has received or is seeking benefits under any unemployment compensation or disability benefits law of any other state or of the United States; provided that if the appropriate agency of such other state or the United States finally determines that the individual is not entitled to such benefits, this disqualification shall not apply;
(E) For any week with respect to which or part of which the individual has received or is seeking disability benefits under the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et seq.);
(F) For any period of disability commencing while such individual is a "covered individual," as defined in subsection (b) of section 3 of the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-27).
(2) Benefit payments under this subsection shall be charged to and paid from the State disability benefits fund established by the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et seq.), and shall not be charged to any employer account in computing any employer's experience rate for contributions payable under this chapter.
(g) Benefits based on service in employment defined in subparagraphs (B) and (C) of R.S.43:21-19(i)(1) shall be payable in the same amount and on the terms and subject to the same conditions as benefits payable on the basis of other service subject to the "unemployment compensation law"; except that, notwithstanding any other provisions of the "unemployment compensation law":
(1) With respect to service performed after December 31, 1977, in an instructional research, or principal administrative capacity for an educational institution, benefits shall not be paid based on such services for any week of unemployment commencing during the period between two successive academic years, or during a similar period between two regular terms, whether or not successive, or during a period of paid sabbatical leave provided for in the individual's contract, to any individual if such individual performs such services in the first of such academic years (or terms) and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms;
(2) With respect to weeks of unemployment beginning after September 3, 1982, on the basis of service performed in any other capacity for an educational institution, benefits shall not be paid on the basis of such services to any individual for any week which commences during a period between two successive academic years or terms if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms, except that if benefits are denied to any individual under this paragraph (2) and the individual was not offered an opportunity to perform these services for the educational institution for the second of any academic years or terms, the individual shall be entitled to a retroactive payment of benefits for each week for which the individual filed a timely claim for benefits and for which benefits were denied solely by reason of this clause;
(3) With respect to those services described in paragraphs (1) and (2) above, benefits shall not be paid on the basis of such services to any individual for any week which commences during an established and customary vacation period or holiday recess if such individual performs such services in the period immediately before such vacation period or holiday recess, and there is a reasonable assurance that such individual will perform such services in the period immediately following such period or holiday recess;
(4) With respect to any services described in paragraphs (1) and (2) above, benefits shall not be paid as specified in paragraphs (1), (2), and (3) above to any individual who performed those services in an educational institution while in the employ of an educational service agency, and for this purpose the term "educational service agency" means a governmental agency or governmental entity which is established and operated exclusively for the purpose of providing those services to one or more educational institutions.
(h) Benefits shall not be paid to any individual on the basis of any services, substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, for any week which commences during the period between two successive sports seasons (or similar periods) if such individual performed such services in the first of such seasons (or similar periods) and there is a reasonable assurance that such individual will perform such services in the later of such seasons (or similar periods).
(i) (1) Benefits shall not be paid on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time the services were performed and was lawfully present for the purpose of performing the services or otherwise was permanently residing in the United States under color of law at the time the services were performed (including an alien who is lawfully present in the United States as a result of the application of the provisions of section 203(a)(7) (8 U.S.C. §1153 (a)(7)) or section 212(d)(5) (8 U.S.C. §1182 (d)(5)) of the Immigration and Nationality Act (8 U.S.C. §1101 et seq.)); provided that any modifications of the provisions of section 3304(a)(14) of the Federal Unemployment Tax Act (26 U.S.C. §3304 (a)(14)), as provided by Pub.L.94-566, which specify other conditions or other effective dates than stated herein for the denial of benefits based on services performed by aliens and which modifications are required to be implemented under State law as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, shall be deemed applicable under the provisions of this section.
(2) Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits.
(3) In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of alien status shall be made except upon a preponderance of the evidence.
(j) Notwithstanding any other provision of this chapter, the director may, to the extent that it may be deemed efficient and economical, provide for consolidated administration by one or more representatives or deputies of claims made pursuant to subsection (f) of this section with those made pursuant to Article III (State plan) of the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et seq.).
(cf: P.L.1992, c.46, s.1)
9. Section 2 of P.L.1992, c.46 (C.43:21-4.1) is amended to read as follows:
2. a. There is established a worker profiling system for the purpose of determining which new claimants for regular benefits are likely to exhaust benefits and therefore have the greatest need for reemployment services to make a successful transition to new employment. Information obtained from the profiling system shall be used in making referrals for reemployment services and may be used in making referrals to other services and benefits, but no individual shall be excluded from seeking or receiving reemployment services or other services or benefits because the individual is not among those determined to be likely to exhaust benefits, unless the exclusion is specifically required by federal law. Nor shall an individual be required to participate, as a condition for receiving regular benefits, in any employment and training services because the individual is among those determined to be likely to exhaust benefits, unless that participation by the individual is specifically required by federal law. A characteristic of an individual shall not be used in making a determination regarding whether the individual is likely to exhaust benefits unless it is demonstrated to be an actual indicator of a high likelihood that benefits will be exhausted.
b. The division shall provide each individual who applies for unemployment compensation with [notice] an initial interview which includes:
(1) Notice of the benefits and services available pursuant to the provisions of this 1992 amendatory and supplementary act and the provisions of [P.L.1983, c.328 (C.34:15B-11 et seq.),] the "1992 New Jersey Employment and Workforce Development Act," P.L.1992, c.43 (C.34:15D-1 et al.), P.L.1992, c.47 (C.43:21-57 et al.) and the "Job Training Partnership Act," Pub.L. 97-300 (29 U.S.C. §1501 et seq.) and of the tuition waivers available pursuant to P.L.1983, c.469 (C.18A:64-13.1 et seq.) and P.L.1983, c.470 (C.18A:64A-23.1 et seq.); and
(2) A review of the individual's rights and responsibilities with respect to the unemployment compensation, including an explanation of the appeal process and of the worker profiling system and its possible impact on the individual.
(cf: P.L.1992, c.46, s.2)
10. R.S. 43:21-19 is amended to read as follows:
43:21-19. Definitions. As used in this chapter (R.S.43:21-1 et seq.), unless the context clearly requires otherwise:
(a) (1) "Annual payroll" means the total amount of wages paid during a calendar year (regardless of when earned) by an employer for employment.
(2) "Average annual payroll" means the average of the annual payrolls of any employer for the last three or five preceding calendar years, whichever average is higher, except that any year or years throughout which an employer has had no "annual payroll" because of military service shall be deleted from the reckoning; the "average annual payroll" in such case is to be determined on the basis of the prior three or five calendar years in each of which the employer had an "annual payroll" in the operation of his business, if the employer resumes his business within 12 months after separation, discharge or release from such service, under conditions other than dishonorable, and makes application to have his "average annual payroll" determined on the basis of such deletion within 12 months after he resumes his business; provided, however, that "average annual payroll" solely for the purposes of paragraph (3) of subsection (e) of R.S.43:21-7 means the average of the annual payrolls of any employer on which he paid contributions to the State disability benefits fund for the last three or five preceding calendar years, whichever average is higher; provided further that only those wages be included on which employer contributions have been paid on or before January 31 (or the next succeeding day if such January 31 is a Saturday or Sunday) immediately preceding the beginning of the 12-month period for which the employer's contribution rate is computed.
(b) "Benefits" means the money payments payable to an individual, as provided in this chapter (R.S.43:21-1 et seq.), with respect to his unemployment.
(c) (1) "Base year" with respect to benefit years commencing on or after January 1, 1953, shall mean the 52 calendar weeks ending with the second week immediately preceding an individual's benefit year. "Base year" with respect to benefit years commencing on or after July 1, 1986, shall mean the first four of the last five completed calendar quarters immediately preceding an individual's benefit year.
(2) With respect to a benefit year commencing on or after June 1, 1990 for an individual who immediately preceding the benefit year was subject to a disability compensable under the provisions of the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et seq.), "base year" shall mean the first four of the last five completed calendar quarters immediately preceding the individual's period of disability, if the employment held by the individual immediately preceding the period of disability is no longer available at the conclusion of that period and the individual files a valid claim for unemployment benefits after the conclusion of that period. For the purposes of this paragraph, "period of disability" means the period defined as a period of disability by section 3 of the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-27). An individual who files a claim under the provisions of this paragraph (2) shall not be regarded as having left work voluntarily for the purposes of subsection (a) of R.S.43:21-5.
(3) With respect to a benefit year commencing on or after June 1, 1990 for an individual who immediately preceding the benefit year was subject to a disability compensable under the provisions of the workers' compensation law (chapter 15 of Title 34 of the Revised Statutes), "base year" shall mean the first four of the last five completed calendar quarters immediately preceding the individual's period of disability, if the period of disability was not longer than two years, if the employment held by the individual immediately preceding the period of disability is no longer available at the conclusion of that period and if the individual files a valid claim for unemployment benefits after the conclusion of that period. For the purposes of this paragraph, "period of disability" means the period from the time at which the individual becomes unable to work because of the compensable disability until the time that the individual becomes able to resume work and continue work on a permanent basis. An individual who files a claim under the provisions of this paragraph (3) shall not be regarded as having left work voluntarily for the purposes of subsection (a) of R.S.43:21-5.
(d) "Benefit year" with respect to any individual means the 364 consecutive calendar days beginning with the day on, or as of, which he first files a valid claim for benefits, and thereafter beginning with the day on, or as of, which the individual next files a valid claim for benefits after the termination of his last preceding benefit year. Any claim for benefits made in accordance with subsection (a) of R.S.43:21-6 shall be deemed to be a "valid claim" for the purpose of this subsection if (1) he is unemployed for the week in which, or as of which, he files a claim for benefits; and (2) he has fulfilled the conditions imposed by subsection (e) of R.S.43:21-4.
(e) (1) "Division" means the Division of Unemployment and Temporary Disability Insurance of the Department of Labor, and any transaction or exercise of authority by the director of the division thereunder, or under this chapter (R.S.43:21-1 et seq.), shall be deemed to be performed by the division.
(2) "Controller" means the Office of the Assistant Commissioner for Finance and Controller of the Department of Labor, established by the 1982 Reorganization Plan of the Department of Labor.
(f) "Contributions" means the money payments to the State Unemployment Compensation Fund, required by R.S.43:21-7. "Payments in lieu of contributions" means the money payments to the State Unemployment Compensation Fund by employers electing or required to make payments in lieu of contributions, as provided in section 3 or section 4 of P.L.1971, c.346 (C.43:21-7.2 or 43:21-7.3).
(g) "Employing unit" means the State or any of its instrumentalities or any political subdivision thereof or any of its instrumentalities or any instrumentality of more than one of the foregoing or any instrumentality of any of the foregoing and one or more other states or political subdivisions or any individual or type of organization, any partnership, association, 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, which has or subsequent to January 1, 1936, 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 which maintains two or more separate establishments within this State shall be deemed to be employed by a single employing unit for all the purposes of this chapter (R.S.43:21-1 et seq.). Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall be deemed to be employed by such employing unit for all the purposes of this chapter (R.S.43:21-1 et seq.), whether such individual was hired or paid directly by such employing unit or by such agent or employee; provided the employing unit had actual or constructive knowledge of the work.
(h) "Employer" means:
(1) Any employing unit which in either the current or the preceding calendar year paid remuneration for employment in the amount of $1,000.00 or more;
(2) Any employing unit (whether or not an employing unit at the time of acquisition) which acquired the organization, trade or business, or substantially all the assets thereof, of another which, at the time of such acquisition, was an employer subject to this chapter (R.S.43:21-1 et seq.);
(3) Any employing unit which acquired the organization, trade or business, or substantially all the assets thereof, of another employing unit and which, if treated as a single unit with such other employing unit, would be an employer under paragraph (1) of this subsection;
(4) Any employing unit which together with one or more other employing units is owned or controlled (by legally enforceable means or otherwise), directly or indirectly by the same interests, or which owns or controls one or more other employing units (by legally enforceable means or otherwise), and which, if treated as a single unit with such other employing unit or interest, would be an employer under paragraph (1) of this subsection;
(5) Any employing unit for which service in employment as defined in R.S.43:21-19 (i) (1) (B) (i) is performed after December 31, 1971; and as defined in R.S.43:21-19 (i) (1) (B) (ii) is performed after December 31, 1977;
(6) Any employing unit for which service in employment as defined in R.S.43:21-19 (i) (1) (C) is performed after December 31, 1971 and which in either the current or the preceding calendar year paid remuneration for employment in the amount of $1,000.00 or more;
(7) Any employing unit not an employer by reason of any other paragraph of this subsection (h) for which, within either the current or preceding calendar year, service is or was performed with respect to which such employing unit is liable for any federal tax against which credit may be taken for contributions required to be paid into a state unemployment fund; or which, as a condition for approval of the "unemployment compensation law" for full tax credit against the tax imposed by the Federal Unemployment Tax Act, is required pursuant to such act to be an employer under this chapter (R.S.43:21-1 et seq.);
(8) (Deleted by amendment; P.L.1977, c.307.)
(9) (Deleted by amendment; P.L.1977, c.307.)
(10) (Deleted by amendment; P.L.1977, c.307.)
(11) Any employing unit subject to the provisions of the Federal Unemployment Tax Act within either the current or the preceding calendar year, except for employment hereinafter excluded under paragraph (7) of subsection (i) of this section;
(12) Any employing unit for which agricultural labor in employment as defined in R.S.43:21-19 (i) (1) (I) is performed after December 31, 1977;
(13) Any employing unit for which domestic service in employment as defined in R.S.43:21-19 (i) (1) (J) is performed after December 31, 1977;
(14) Any employing unit which having become an employer under the "unemployment compensation law" (R.S.43:21-1 et seq.), has not under R.S.43:21-8 ceased to be an employer; or for the effective period of its election pursuant to R.S.43:21-8, any other employing unit which has elected to become fully subject to this chapter (R.S.43:21-1 et seq.).
(i) (1) "Employment" means:
(A) Any service performed prior to January 1, 1972, which was employment as defined in the "unemployment compensation law" (R.S.43:21-1 et seq.) prior to such date, and, subject to the other provisions of this subsection, service performed on or after January 1, 1972, including service in interstate commerce, performed for remuneration or under any contract of hire, written or oral, express or implied.
(B) (i) 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, if such service is not excluded from "employment" under paragraph (D) below.
(ii) 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 more than one of the foregoing or any instrumentality of the foregoing and one or more other states or political subdivisions, if such service is not excluded from "employment" under paragraph (D) below.
(C) Service performed after December 31, 1971 by an individual in the employ of a religious, charitable, educational, or other organization, which is excluded from "employment" as defined in the Federal Unemployment Tax Act, solely by reason of section 3306 (c) (8) of that act, if such service is not excluded from "employment" under paragraph (D) below.
(D) For the purposes of paragraphs (B) and (C), the term "employment" does not apply to services performed
(i) In the employ of (I) a church or convention or association of churches, or (II) an organization, or school 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;
(ii) By a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order;
(iii) 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 R.S.43:21-19 (i) (1) (B), if such 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 State 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;
(ee) in a position which, under or pursuant to the laws of this State, is designated as a major nontenured policy making or advisory position, or a policy making or advisory position, the performance of the duties of which ordinarily does not require more than eight hours per week; or
(iv) By an individual receiving rehabilitation or remunerative work in a facility conducted for the purpose of carrying out a program of rehabilitation of 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;
(v) By an individual receiving work-relief or work-training as part of an unemployment work-relief or work-training program assisted in whole or in part by any federal agency or an agency of a state or political subdivision thereof; or
(vi) 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.
(E) The term "employment" shall include the services of an individual who is a citizen of the United States, performed outside the United States after December 31, 1971 (except in Canada and in the case of the Virgin Islands, after December 31, 1971 and prior to January 1 of the year following the year in which the U.S. Secretary of Labor approves the unemployment compensation law of the Virgin Islands, under section 3304 (a) of the Internal Revenue Code of 1986 (26 U.S.C. §3304 (a)) in the employ of an American employer (other than the service which is deemed employment under the provisions of R.S.43:21-19 (i) (2) or (5) of the parallel provisions of another state's unemployment compensation law), if
(i) The American employer's principal place of business in the United States is located in this State; or
(ii) The American employer has no place of business in the United States, but (I) the American employer is an individual who is a resident of this State; or (II) the American employer is a corporation which is organized under the laws of this State; or (III) the American employer is a partnership or trust and the number of partners or trustees who are residents of this State is greater than the number who are residents of another state; or
(iii) None of the criteria of divisions (i) and (ii) of this subparagraph (E) is met but the American employer has elected to become an employer subject to the "unemployment compensation law" (R.S.43:21-1 et seq.) in this State, or the American employer having failed to elect to become an employer 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 the purposes of this subparagraph (E), means (I) an individual who is a resident of the United States; or (II) a partnership, if two-thirds or more of the partners are residents of the United States; or (III) a trust, if all the trustees are residents of the United States; or (IV) a corporation organized under the laws of the United States or of any state.
(F) Notwithstanding R.S.43:21-19 (i) (2), all service performed after January 1, 1972 by an officer or member of the crew of an American vessel or American aircraft on or in connection with such vessel or aircraft, if the operating office from which the operations of such vessel or aircraft operating within, or within and without, the United States are ordinarily and regularly supervised, managed, directed, and controlled, is within this State.
(G) Notwithstanding any other provision of this subsection, service in this State with respect to which the taxes 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 the "unemployment compensation law" (R.S.43:21-1 et seq.).
(H) The term "United States" when used in a geographical sense in subsection R.S.43:21-19 (i) includes the states, the District of Columbia, the Commonwealth of Puerto Rico and, effective on the day after the day on which the U.S. Secretary of Labor approves for the first time under section 3304 (a) of the Internal Revenue Code of 1986 (26 U.S.C §3304 (a)) an unemployment compensation law submitted to the Secretary by the Virgin Islands for such approval, the Virgin Islands.
(I) (i) Service performed after December 31, 1977 in agricultural labor in a calendar year for an entity which is an employer as defined in the "unemployment compensation law," (R.S.43:21-1 et seq.) as of January 1 of such year; or for an employing unit which
(aa) during any calendar quarter in either the current or the preceding calendar year paid remuneration in cash of $20,000.00 or more for individuals employed in agricultural labor, or
(bb) for some portion of a day in each of 20 different calendar weeks, whether or not such weeks were consecutive, in either the current or the preceding calendar year, employed in agricultural labor 10 or more individuals, regardless of whether they were employed at the same moment in time.
(ii) For the purposes of this subsection any individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for any other entity shall be treated as an employee of such crew leader
(aa) if such crew leader holds a certification of registration under the Migrant and Seasonal Agricultural Worker Protection Act, Pub.L.97-470 (29 U.S.C.§1801 et seq.), or P.L.1971, c.192 (C.34:8A-7 et seq.); or substantially all the members of such crew operate or maintain tractors, mechanized harvesting or cropdusting equipment, or any other mechanized equipment, which is provided by such crew leader; and
(bb) if such individual is not an employee of such other person for whom services were performed.
(iii) For the purposes of subparagraph (I) (i) in the case of any individual who is furnished by a crew leader to perform service in agricultural labor or any other entity and who is not treated as an employee of such crew leader under (I) (ii)
(aa) such other entity and not the crew leader shall be treated as the employer of such individual; and
(bb) such other entity shall 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 his own behalf or on behalf of such other entity) for the service in agricultural labor performed for such other entity.
(iv) For the purpose of subparagraph (I) (i), the term "crew leader" means an individual who
(aa) furnishes individuals to perform service in agricultural labor for any other entity;
(bb) pays (either on his own behalf or on behalf of such other entity) the individuals so furnished by him for the service in agricultural labor performed by them; and
(cc) has not entered into a written agreement with such other entity under which such individual is designated as an employee of such other entity.
(J) Domestic service after December 31, 1977 performed in the private home of an employing unit which paid cash remuneration of $1,000.00 or more to one or more individuals for such domestic service in any calendar quarter in the current or preceding calendar year.
(2) The term "employment" shall include an individual's entire service performed within or both within and without this State if:
(A) The service is localized in this State; or
(B) The service is not localized in any state but some of the service is performed in this State, and (i) the base of operations, or, if there is no base of operations, then the place from which such service is directed or controlled, is in this State; or (ii) the base of operations or place from which such 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.
(3) Services performed within this State but not covered under paragraph (2) of this subsection shall be deemed to be employment subject to this chapter (R.S.43:21-1 et seq.) if contributions are not required and paid with respect to such services under an unemployment compensation law of any other state or of the federal government.
(4) Services not covered under paragraph (2) of this subsection and performed entirely without this State, with respect to no part of which contributions are required and paid under an unemployment compensation law of any other state or of the federal government, shall be deemed to be employment subject to this chapter (R.S.43:21-1 et seq.) if the individual performing such services is a resident of this State and the employing unit for whom such services are performed files with the division an election that the entire service of such individual shall be deemed to be employment subject to this chapter (R.S.43:21-1 et seq.).
(5) Service shall 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.
(6) Services performed by an individual for remuneration shall be deemed to be employment subject to this chapter (R.S.43:21-1 et seq.) unless and until it is shown to the satisfaction of the division that:
(A) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and
(B) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
(C) Such individual is customarily engaged in an independently established trade, occupation, profession or business.
(7) Provided that such services are also exempt under the Federal Unemployment Tax Act, as amended, or that contributions with respect to such services are not required to be paid into a state unemployment fund as a condition for a tax offset credit against the tax imposed by the Federal Unemployment Tax Act, as amended, the term "employment" shall not include:
(A) Agricultural labor performed prior to January 1, 1978; and after December 31, 1977, only if performed in a calendar year for an entity which is not an employer as defined in the "unemployment compensation law," (R.S.43:21-1 et seq.) as of January 1 of such calendar year; or unless performed for an employing unit which
(i) during a 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
(ii) for some portion of a day in each of 20 different calendar weeks, whether or not such weeks were consecutive, in either the current or the preceding calendar year, employed in agricultural labor 10 or more individuals, regardless of whether they were employed at the same moment in time;
(B) Domestic service in a private home performed prior to January 1, 1978; and after December 31, 1977, unless performed in the private home of an employing unit which paid cash remuneration of $1,000.00 or more to one or more individuals for such domestic service in any calendar quarter in the current or preceding calendar year;
(C) Service performed by an individual in the employ of his son, daughter or spouse, and service performed by a child under the age of 18 in the employ of his father or mother;
(D) Service performed prior to January 1, 1978, in the employ of this State or of any political subdivision thereof or of any instrumentality of this State or its political subdivisions, except as provided in R.S.43:21-19 (i) (1) (B) above, and service in the employ of the South Jersey Port Corporation or its successors;
(E) Service performed in the employ of any other state or its political subdivisions or of an instrumentality of any other state or states or their political subdivisions to the extent that such instrumentality is with respect to such service exempt under the Constitution of the United States from the tax imposed under the Federal Unemployment Tax Act, as amended, except as provided in R.S.43:21-19 (i) (1) (B) above;
(F) Service performed in the employ of the United States Government or of any instrumentality of the United States except under the Constitution of the United States from the contributions imposed by the "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 this act shall be applicable to such instrumentalities, and to service 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; provided that if this State shall not be certified for any year by the Secretary of Labor of the United States under section 3304 of the federal Internal Revenue Code of 1986 (26 U.S.C. §3304), the payments required of such instrumentalities with respect to such year shall be refunded by the division from the fund in the same manner and within the same period as is provided in R.S.43:21-14 (f) with respect to contributions erroneously paid to or collected by the division;
(G) Services performed in the employ of fraternal beneficiary societies, orders, or associations operating under the lodge system or for the exclusive benefit of the members of a fraternity itself operating under the lodge system and providing for the payment of life, sick, accident, or other benefits to the members of such society, order, or association, or their dependents;
(H) Services performed as a member of the board of directors, a board of trustees, a board of managers, or a committee of any bank, building and loan, or savings and loan association, incorporated or organized under the laws of this State or of the United States, where such services do not constitute the principal employment of the individual;
(I) Service with respect to which unemployment insurance is payable under an unemployment insurance program established by an Act of Congress;
(J) Service performed by agents of mutual fund brokers or dealers in the sale of mutual funds or other securities, by agents of insurance companies, exclusive of industrial insurance agents or by agents of investment companies, if the compensation to such agents for such services is wholly on a commission basis;
(K) Services performed by real estate salesmen or brokers who are compensated wholly on a commission basis;
(L) Services performed in the employ of any veterans' organization chartered by Act of Congress or of any auxiliary thereof, no part of the net earnings of which organization, or auxiliary thereof, inures to the benefit of any private shareholder or individual;
(M) Service performed for or in behalf of the owner or operator of any theatre, ballroom, amusement hall or other place of entertainment, not in excess of 10 weeks in any calendar year for the same owner or operator, by any leader or musician of a band or orchestra, commonly called a "name band," entertainer, vaudeville artist, actor, actress, singer or other entertainer;
(N) Services performed after January 1, 1973 by an individual for a labor union organization, known and recognized as a union local, as a member of a committee or committees reimbursed by the union local for time lost from regular employment, or as a part-time officer of a union local and the remuneration for such services is less than $1,000.00 in a calendar year;
(O) Services performed in the sale or distribution of merchandise by home-to-home salespersons or in-the-home demonstrators whose remuneration consists wholly of commissions or commissions and bonuses;
(P) Service performed in the employ of a foreign government, including service as a consular, nondiplomatic representative, or other officer or employee;
(Q) Service performed in the employ of an instrumentality wholly owned by a foreign government if (i) the service is of a character similar to that performed in foreign countries by employees of the United States Government or of an instrumentality thereof, and (ii) the division finds that the United States Secretary of State has certified to the United States Secretary of the Treasury that the foreign government, with respect to whose instrumentality exemption is claimed, grants an equivalent exemption with respect to similar services performed in the foreign country by employees of the United States Government and of instrumentalities thereof;
(R) Service in the employ of an international organization entitled to enjoy the privileges, exemptions and immunities under the International Organizations Immunities Act (22 U.S.C.§288 et seq.);
(S) Service covered by an election duly approved by an agency charged with the administration of any other state or federal unemployment compensation or employment security law, in accordance with an arrangement pursuant to R.S.43:21-21 during the effective period of such election;
(T) Service performed in the employ of a school, college, or university if such service is performed (i) by a student enrolled at such school, college, or university on a full-time basis in an educational program or completing such educational program leading to a degree at any of the severally recognized levels, or (ii) by the spouse of such a student, if such spouse is advised at the time such spouse commences to perform such service that (I) 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 (II) such employment will not be covered by any program of unemployment insurance;
(U) Service performed 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 subparagraph shall not apply to service performed in a program established for or on behalf of an employer or group of employers;
(V) Service performed in the employ of a hospital, if such service is performed by a patient of the hospital; service performed as a student nurse in the employ of a hospital or a nurses' training school by an individual who is enrolled and regularly attending classes in a nurses' training school approved under the laws of this State; 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 approved pursuant to the laws of this State;
(W) Services performed after the effective date of this amendatory act by agents of mutual benefit associations if the compensation to such agents for such services is wholly on a commission basis;
(X) Services performed by operators of motor vehicles weighing 18,000 pounds or more, licensed for commercial use and used for the highway movement of motor freight, who own their equipment or who lease or finance the purchase of their equipment through an entity which is not owned or controlled directly or indirectly by the entity for which the services were performed and who were compensated by receiving a percentage of the gross revenue generated by the transportation move or by a schedule of payment based on the distance and weight of the transportation move;
(Y) Services performed by a certified shorthand reporter certified pursuant to P.L.1940, c.175 (C.45:15B-1 et seq.), provided to a third party by the reporter who is referred to the third party pursuant to an agreement with another certified shorthand reporter or shorthand reporting service, on a freelance basis, compensation for which is based upon a fee per transcript page, flat attendance fee, or other flat minimum fee, or combination thereof, set forth in the agreement;
(Z) Services performed, using facilities provided by a travel agent, by a person, commonly known as an outside travel agent, who acts as an independent contractor, is paid on a commission basis, sets his own work schedule and receives no benefits, sick leave, vacation or other leave from the travel agent owning the facilities.
(8) If one-half or more of the services in any pay period performed by an individual for an employing unit constitutes employment, all the services of such individual shall be deemed to be employment; but if more than one-half of the service in any pay period performed by an individual for an employing unit does not constitute employment, then none of the service of such individual shall be deemed to be employment. As used in this paragraph, the term "pay period" means a period of not more than 31 consecutive days for which a payment for service is ordinarily made by an employing unit to individuals in its employ.
(9) Services performed by the owner of a limousine franchise (franchisee) shall not be deemed to be employment subject to the "unemployment compensation law," R.S.43:21-1 et seq., with regard to the franchisor if:
(A) The limousine franchisee is incorporated;
(B) The franchisee is subject to regulation by the Interstate Commerce Commission;
(C) The limousine franchise exists pursuant to a written franchise arrangement between the franchisee and the franchisor as defined by section 3 of P.L.1971, c.356 (C.56:10-3); and
(D) The franchisee registers with the Department of Labor and receives an employer registration number.
(j) "Employment office" means a free public employment office, or branch thereof operated by this State or maintained as a part of a State-controlled system of public employment offices.
(k) (Deleted by amendment, P.L.1984, c.24.)
(l) "State" includes, in addition to the states of the United States of America, the District of Columbia, the Virgin Islands and Puerto Rico.
(m) "Unemployment."
(1) An individual shall be deemed "unemployed" for any week during which [he] :
(A) The individual is not engaged in full-time work and with respect to which his remuneration is less than his weekly benefit rate, including any week during which he is on vacation without pay; provided such vacation is not the result of the individual's voluntary action, except that for benefit years commencing on or after July 1, 1984, an officer of a corporation, or a person who has more than a 5% equitable or debt interest in the corporation, whose claim for benefits is based on wages with that corporation shall not be deemed to be unemployed in any week during the individual's term of office or ownership in the corporation; or
(B) The individual is eligible for and receiving a self-employment assistance allowance pursuant to the requirements of this 1996 amendatory and supplementary act.
(2) The term "remuneration" with respect to any individual for benefit years commencing on or after July 1, 1961, and as used in this subsection, shall include only that part of the same which in any week exceeds 20% of his weekly benefit rate (fractional parts of a dollar omitted) or $5.00, whichever is the larger.
(3) An individual's week of unemployment shall be deemed to commence only after the individual has filed a claim at an unemployment insurance claims office, except as the division may by regulation otherwise prescribe.
(n) "Unemployment compensation administration fund" means the unemployment compensation administration fund established by this chapter (R.S.43:21-1 et seq.), from which administrative expenses under this chapter (R.S.43:21-1 et seq.) shall be paid.
(o) "Wages" means remuneration paid by employers for employment. If a worker receives gratuities regularly in the course of his employment from other than his employer, his "wages" shall also include the gratuities so received, if reported in writing to his employer in accordance with regulations of the division, and if not so reported, his "wages" shall be determined in accordance with the minimum wage rates prescribed under any labor law or regulation of this State or of the United States, or the amount of remuneration actually received by the employee from his employer, whichever is the higher.
(p) "Remuneration" means all compensation for personal services, including commission and bonuses and the cash value of all compensation in any medium other than cash.
(q) "Week" means for benefit years commencing on or after October 1, 1984, the calendar week ending at midnight Saturday, or as the division may by regulation prescribe.
(r) "Calendar quarter" means the period of three consecutive calendar months ending March 31, June 30, September 30, or December 31.
(s) "Investment company" means any company as defined in subsection a. of section 1 of P.L.1938, c.322 (C.17:16A-1).
(t) (1) "Base week" for a benefit year commencing prior to October 1, 1984, means, except as otherwise provided in paragraph (2) of this subsection, any calendar week of an individual's base year during which he earned in employment from an employer remuneration equal to not less than $30.00. "Base week" for a benefit year commencing on or after October 1, 1984 and prior to October 1, 1985 means any calendar week of an individual's base year during which the individual earned in employment from an employer remuneration equal to not less than 15% of the Statewide average weekly remuneration defined in subsection (c) of R.S.43:21-3, which shall be adjusted to the next higher multiple of $1.00 if not already a multiple thereof.
"Base week" for a benefit year commencing on or after October 1, 1985 means, except as otherwise provided in paragraph (2) of this subsection, any calendar week of an individual's base year during which the individual earned in employment from an employer remuneration equal to not less than 20% of the Statewide average weekly remuneration defined in subsection (c) of R.S.43:21-3 which shall be adjusted to the next higher multiple of $1.00 if not already a multiple thereof; provided if in any calendar week an individual is in employment with more than one employer, he may in such calendar week establish a base week with respect to each such employer from whom the individual earns remuneration equal to not less than the amount defined in this paragraph (1) during such week.
(2) "Base week," with respect to an individual claiming benefits on the basis of service performed in the production and harvesting of agricultural crops, means, for a benefit year commencing on or after October 1, 1984 and before January 1, 1985, any calendar week of an individual's base year during which the individual earned in employment from an employer remuneration equal to not less than $30.00, except that if in any calendar week an individual subject to this paragraph is in employment with more than one employer, the individual may in that calendar week establish a base week with respect to each of the employers from whom the individual earns remuneration equal to not less than the amount defined in this paragraph (2) during that week.
(u) "Average weekly wage" means the amount derived by dividing an individual's total wages received during his base year base weeks (as defined in subsection (t) of this section) from that most recent base year employer with whom he has established at least 20 base weeks, by the number of base weeks in which such wages were earned. In the event that such claimant had no employer in his base year with whom he had established at least 20 base weeks, then such individual's average weekly wage shall be computed as if all of his base week wages were received from one employer and as if all his base weeks of employment had been performed in the employ of one employer.
For the purpose of computing the average weekly wage, the monetary alternative in subsection (e) of R.S.43:21-4 shall only apply in those instances where the individual did not have at least 20 base weeks in the base year. For benefit years commencing on or after July 1, 1986, "average weekly wage" means the amount derived by dividing an individual's total base year wages by the number of base weeks worked by the individual during the base year; provided that for the purpose of computing the average weekly wage, the maximum number of base weeks used in the divisor shall be 52.
(v) "Initial determination" means, subject to the provisions of R.S.43:21-6 (b) (2) and (3), a determination of benefit rights as measured by an eligible individual's base year employment with a single employer covering all periods of employment with that employer during the base year. For benefit years commencing prior to July 1, 1986, subject to the provisions of R.S.43:21-3 (d) (3), if an individual has been in employment in his base year with more than one employer, no benefits shall be paid to that individual under any successive initial determination until his benefit rights have been exhausted under the next preceding initial determination.
(w) "Last date of employment" means the last calendar day in the base year of an individual on which he performed services in employment for a given employer.
(x) "Most recent base year employer" means that employer with whom the individual most recently, in point of time, performed service in employment in the base year.
(y) (1) "Educational institution" means any public or other nonprofit institution (including an institution of higher education):
(A) In which participants, trainees, or students are offered an organized course of study or training designed to transfer to them knowledge, skills, information, doctrines, attitudes or abilities from, by or under the guidance of an instructor (s) or teacher (s);
(B) Which is approved, licensed or issued a permit to operate as a school by the State Department of Education or other government agency that is authorized within the State to approve, license or issue a permit for the operation of a school; and
(C) Which offers courses of study or training which may be academic, technical, trade, or preparation for gainful employment in a recognized occupation.
(2) "Institution of higher education" 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 post-graduate or post-doctoral 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 this section.
(z) "Hospital" means an institution which has been licensed, certified or approved under the law of this State as a hospital.
(cf: P.L.1993, c.312, s.1)
11. This act shall take effect on the 180th day following enactment.
STATEMENT
This bill establishes a Self-Employment Assistance Financing Program within the New Jersey Economic Development Authority (EDA) to: (1) assist unemployed individuals who demonstrate the ability to become small-business entrepreneurs in establishing new businesses; (2) help involve participants with public, private and non-profit community and economic development agencies, educational, community and financial institutions, community business groups and each other; and (3) provide this assistance at the lowest possible public cost, through micro-lending, training, and technical assistance. The EDA has recognized the "micro-lending" approach, and through its newly created Entrepreneurial Training Institute, is providing entrepreneurial training for minority, female and small business entrepreneurs in Atlantic City and Camden.
A central component of the program is the use of "peer groups," each with not more than twenty participants who provide mutual assistance and support for each other's efforts to establish businesses and become self-employed entrepreneurs. Training, counseling and technical services would be provided to program participants principally through peer groups. The EDA could consider the recommendations and past experience of a peer group when providing loans and loan guarantees to members of the group.
The bill also establishes a program in the State Department of Labor to assist laid-off workers in their efforts to become self-employed. Each new claimant who qualifies for regular unemployment benefits would be evaluated under the worker profiling system established by the bill to determine whether the claimant is among those who are likely to exhaust unemployment benefits. If so, the claimant could apply to the department for self-employment assistance. The department may refer the applicant to the EDA for business counseling, technical assistance and entrepreneurial training. The purpose of those services is to help the claimant to meet prerequisites for receiving a self-employment assistance allowance, including developing an acceptable business plan and obtaining adequate commitments for financing and further services as needed to implement the plan. If the EDA certifies that the prerequisites have been met, the department may approve payment to the claimant of a self-employment assistance allowance.
A self-employment assistance allowance is a weekly allowance paid from the unemployment compensation fund in lieu of, and equal to, regular unemployment benefits. To receive the allowance an unemployed worker must participate on a full-time basis in self-employment assistance activities. The requirements to be available for work and search for work which apply when receiving regular unemployment benefits do not apply when receiving a self-employment assistance allowance. No reduction is made in the allowance due to income earned in self-employment.
The number of people receiving self-employment assistance allowances at any time is limited to 0.5% of the number of people receiving regular unemployment benefits. It is estimated that about 200 individuals will receive the benefits during the first year of the program.
The bill also establishes a worker profiling system to help determine which new claimants for regular unemployment benefits are likely to exhaust benefits and have the greatest need for reemployment services to find new employment. The system would be used in making referrals not only for the self-employment assistance program, but also for reemployment services, such as job search and job placement services. It may be used in making referrals to other benefits and services, such as job training, but not to exclude anyone from seeking or receiving services, except where the exclusion is required by federal law, which is the case for self-employment assistance services. An individual found likely to exhaust benefits may be required, as a condition for receiving regular benefits, to participate in available reemployment services (but not other services) to which the individual is referred, unless it is found that the individual has completed reemployment services or is participating in other department-approved activities to assist reemployment or enhance marketable skills and earning power. Factors may not be used to determine whether the individual is likely to exhaust benefits unless they are demonstrated to be an actual indicator of a high likelihood that benefits will be exhausted.
The bill also:
1. Permits the EDA to use funds from other State agencies and authorities for loans and loan guarantees to participants;
2. Permits the EDA to develop underwriting criteria appropriate for the purposes of the program;
3. Provides that the EDA and the Department of Labor jointly select any outside provider of self-employment assistance services;
4. Makes EDA responsible for informing the Department of Labor whenever a program participant fails to participate on a full-time basis;
5. Reduces the maximum number of people receiving self-employment assistance allowances at any time from 1% of the number of people receiving regular unemployment benefits to 0.5%.
The "Self-Employment Assistance and Entrepreneurial Training Act."