Section 1: Definitions
Section 1. The following words and phrases as used in this chapter shall have the following meanings, unless the context clearly requires otherwise:?
(a) ''Base period'', the last four completed calendar quarters immediately preceding the first day of an individual's benefit year; provided, however that if an individual as a result of the above provision does not meet the requirement of clause (a) of section twenty-four, or has reason to believe that he would be eligible for an increase of ten percent or more in his total benefit credit as defined in subsection (a) of section thirty, if his base period was calculated using the last three completed calendar quarters and any weeks in which wages were paid to the individual during the incomplete calendar quarter in which the individual files a claim, and any such individual who has reason to believe that he would be eligible for an increase of ten percent or more has presented credible substantiation for such belief to the commissioner in writing including, but not limited to, an individual's wage statement, and the commissioner has verified such circumstance by requesting a report of wages from any employer in such incomplete calendar quarter, then the term ''base period'' shall mean the last three completed calendar quarters and any weeks in which wages were paid to the individual in the incomplete calendar quarter in which the individual files a claim for benefits; provided, further, that if a claimant received weekly compensation for temporary total disability under the provisions of chapter one hundred and fifty-two or under a similar law of the United States, not including payments for certain specified injuries under section thirty-six of said chapter one hundred and fifty-two or payments for similar specified injuries under workers' compensation laws of any other state or under any similar law of the United States, for more than seven weeks within the base period, as heretofore defined, his base period shall be lengthened by the number of such weeks, but not to exceed fifty-two weeks, for which he received such payments; and provided, further, that no extended base period shall include wages upon which benefits were established and paid with respect to a prior benefit year claim.
Applicants shall receive notice of the option to use the method of determining base period on the basis of the last three completed calendar quarters and any weeks in which wages were paid to the individual during the incomplete calendar quarter, or the prior fifty-two weeks, whichever is applicable. Notice of the availability of this option for all claimants with benefit years beginning on or after October second, nineteen hundred and ninety-four shall be posted in each office in which individuals may apply for benefits. The commissioner shall inform all claimants applying on or after January first, nineteen hundred and ninety-five, in writing, of said option at the time of such filing.
Except as provided in subsection (a) of section twenty-four, all wages which fall within a base period of a valid claim which were previously used to establish a prior claim are not available for reuse in establishing a subsequent benefit year.
(b) ''Benefit'', the money allowance payable to an individual as compensation for his wage losses due to unemployment as provided in this chapter.
(c) ''Benefit year'', the period of fifty-two consecutive weeks beginning on the Sunday immediately preceding the date on which an individual files a claim for benefits; provided, however, that the benefit year shall be fifty-three weeks if filing a new claim would result in overlapping any quarter of the base period of a previously filed new claim where such extension of the benefit year will prevent such overlapping; provided, further that, with respect to the week in which such claim is filed, (1) the individual has no unexpired benefit year and (2) the individual meets the requirement of subsection (a) of section twenty-four; provided, further, that if the individual has been denied benefits during the period the individual is receiving termination, severance, or dismissal pay, or payment in lieu of dismissal notice under the provisions of clause (3) of subsection (r), the individual's benefit year shall be extended by the number of weeks for which the individual was disqualified but no more than fifty-two weeks.
(d) ''Board of review'', the board of review established by section nine N(b) of chapter twenty-three.
(e) ''Compensable week'', a week for which a worker is entitled to benefits for unemployment.
(e1/2) ''Commissioner'', the director of unemployment assistance.
(f) ''Contributions'', the money payments to the unemployment compensation fund required by this chapter.
(g) ''Department'', the department of unemployment assistance.
(g1/2) ''Domestic violence'', abuse committed against an employee or the employee's dependent child by: (1) a current or former spouse of the employee; (2) a person with whom the employee shares a child in common; (3) a person who is cohabitating with or has cohabitated with the employee; (4) a person who is related by blood or marriage; or (5) a person with whom the employee has or had a dating or engagement relationship.
For the purposes of this chapter, abuse shall include (1) attempting to cause or causing physical harm; (2) placing another in fear of imminent serious physical harm; (3) causing another to engage involuntarily in sexual relations by force, threat or duress or engaging or threatening to engage in sexual activity with a dependent child; (4) engaging in mental abuse, which includes threats, intimidation or acts designed to induce terror; (5) depriving another of medical care, housing, food or other necessities of life; and (6) restraining the liberty of another.
For the purposes of this chapter, an individual may demonstrate the existence of domestic violence by providing 1 of the following: (1) a restraining order or other documentation of equitable relief issued by a court of competent jurisdiction; (2) a police record documenting the abuse; (3) documentation that the perpetrator of the abuse has been convicted of 1 or more of the offenses enumerated in chapter 265 where the victim was a family or household member; (4) medical documentation of the abuse; (5) a statement provided by a counselor, social worker, health worker, member of the clergy, shelter worker, legal advocate or other professional who has assisted the individual in addressing the effects of the abuse on the individual or the individual's family; or (6) a sworn statement from the individual attesting to the abuse. All evidence of domestic violence experienced by an individual, including the individual's statement and corroborating evidence, shall not be disclosed by the department unless consent for disclosure is given by the individual.
(h) ''Employee'', any individual employed by any employer subject to this chapter and in employment subject thereto.
(i) ''Employer'', any employing unit subject to this chapter, the commonwealth, its instrumentalities, political subdivisions, their instrumentalities, any instrumentality of more than one of the foregoing, and any instrumentality of any of the foregoing and one or more other states or political subdivisions. An instrumentality of a political subdivision may include municipal hospitals, municipal electric companies, municipal water companies, regional school districts and any such other instrumentalities as are financially independent and are created by statute.
For the purposes of this chapter, the commonwealth, including all its branches and departments and its hospitals and institutions of higher education, shall be deemed to be one employer. Each political subdivision shall be deemed to be one employer. Each instrumentality of the commonwealth, or of any political subdivision, or of any combination thereof including any one or more of the foregoing and any one or more states shall be deemed to be a separate employer. In a city or town ''employer'' for the purpose of electing to become a rated governmental employer or to make payment in lieu of contribution shall mean the city manager in a city having a city manager, the mayor in any other city, the town manager in a municipality having a town council form of government and the selectmen in any other town.
(j) ''Employing unit'', any individual or type of organization including any partnership, firm, association, trust, trustee, estate, joint stock company, insurance company, corporation, whether domestic or foreign, or his or its legal representative, or the assignee, receiver, trustee in bankruptcy, trustee or successor of any of the foregoing or the legal representative of a deceased person who or which has or subsequent to January first, nineteen hundred and forty-one, had one or more individuals performing services for him or it within this commonwealth.
(k) ''Employment'', service, including service in interstate commerce, performed for wages or under any contract, oral or written, express or implied, by an employee for his employer as provided in this section and in sections two, three, four A, five, six and eight C.
(l) ''Employment office'', the free public employment office operated by the commonwealth in the employment district in which the employee resides or is employed, or the branch or local office nearest to his place of residence or employment, unless otherwise prescribed by the director.
(m) ''Employment security administration account'', the account set up for the purpose of meeting the expenses of administration under this chapter.
(n) ''Payroll'', the total amount of all wages for employment subject to this chapter.
(o) ''Quarter'', any one of the following periods in any year:?January first to March thirty-first, inclusive; April first to June thirtieth, inclusive; July first to September thirtieth, inclusive; October first to December thirty-first, inclusive. For the purpose of determining wages paid in the highest quarter as provided in subsection (w), the director may combine the incomplete parts of the quarters occurring at the beginning and the end of the base period, and such incomplete combined periods shall be considered as a quarter.
(p) ''Quarterly wage'', the amount of wages of an employee in a quarter from one or more employers.
(q) ''State advisory council'', the state advisory council established by section nine N(a) of chapter twenty-three.
(r) ''Unemployed'' and ''Unemployment'', an individual shall be deemed to be unemployed and in unemployment if either in ''partial unemployment'' or in ''total unemployment'' as defined in this subsection.
(1) ''Partial unemployment'', an individual shall be deemed to be in partial unemployment if in any week of less than full-time weekly schedule of work he has earned or has received aggregate remuneration in an amount which is less than the weekly benefit rate to which he would be entitled if totally unemployed during said week; provided, however, that certain earnings as specified in paragraph (b) of section twenty-nine shall be disregarded. For the purpose of this subsection, any loss of remuneration incurred by an individual during said week resulting from any cause other than failure of his employer to furnish full-time weekly schedule of work shall be considered as wages and the director may prescribe the manner in which the total amount of such wages thus lost shall be determined.
(2) ''Total unemployment'', an individual shall be deemed to be in total unemployment in any week in which he performs no wage-earning services whatever, and for which he receives no remuneration, and in which, though capable of and available for work, he is unable to obtain any suitable work. Services rendered in consideration of remuneration received for relief, support, or assistance, furnished or provided by any agency of the commonwealth, or of a political subdivision thereof, charged with the duty of furnishing aid or assistance, shall not be construed as wage-earning services. An individual who is not entitled to vacation pay from his employer shall be deemed to be in total unemployment during the entire period of any general closing of his employer's place of business for vacation purposes, notwithstanding his prior assent, direct or indirect, to the establishment of such vacation period by his employer. Notwithstanding any general or special law to the contrary, an individual employed as a crewmember on a commercial fishing vessel shall be deemed to be in total unemployment during any period of general closing of the individual's employer's fishing vessel due to the employer's inability to conduct fishing operations as a result of federal fisheries management restrictions and the individual performs no wage-earning services whatsoever, and for which the individual receives no remuneration during those periods of general closing of the individual's employer's fishing vessel.
(3) For the purpose of this subsection, ''Remuneration'', any consideration, whether paid directly or indirectly, including salaries, commissions and bonuses, and reasonable cash value of board, rent, housing, lodging, payment in kind and all payments in any medium other than cash, received by an individual (1) from his employing unit for services rendered to such employing unit, (2) as net earnings from self-employment, and (3) as termination, severance or dismissal pay, or as payment in lieu of dismissal notice, whether or not notice is required, or as payment for vacation allowance during a period of regular employment; provided, however, that for the purposes of this chapter, ''remuneration'' shall not include any payments made pursuant to subsections (b) and (c) of section one hundred and eighty-three, and subsection (b) of section one hundred and eighty-four of chapter one hundred and forty-nine, nor shall it include payment for unused vacation or sick leave, or the payment of such termination, severance or dismissal pay, or payment in lieu of dismissal notice, made to the employee in a lump sum in connection with a plant closing, nor shall this clause affect the application of subsection (d) of section twenty-nine.
For the purposes of this clause, ''plant closing'' shall mean a permanent cessation or reduction of business at a facility of at least fifty employees which results or will result as determined by the commissioner in the permanent separation of at least fifty percent of the employees of a facility or facilities. For the purpose of this subsection, the word ''remuneration'' shall not include tips paid in any medium other than cash but shall include cash tips received by an employee in the course of his employment by an employer. Remuneration shall be deemed to have been received in such week or weeks in which it was earned or for such week or weeks, including any fractions thereof, to which it can reasonably be considered to apply. If the length of the period to which the remuneration applies is not clearly identified, such period shall be determined by dividing such remuneration by the amount of the individual's average weekly wage.
(s)(A) ''Wages'', every form of remuneration of an employee subject to this chapter for employment by an employer, whether paid directly or indirectly, including salaries, commissions and bonuses, and reasonable cash value of board, rent, housing, lodging, payment in kind and all remuneration paid in any medium other than cash; provided, however, that such term shall not include:
(1) The amount of any payment, including any amount paid by an employer for insurance or annuities, or into a fund, to provide for any such payment, made to, or on behalf of, an employee or any of the employee's dependents under a plan or system established by an employer which makes provision for the employees generally and their dependents or for a class or classes of the employees and their dependents, on account of (i) sickness or accident disability but, in the case of payment made to an employee or any of the employee's dependents, this paragraph shall exclude from the term ''wages'' only payments which are received under a worker's compensation law; or (ii) medical or hospitalization expenses in connection with sickness or accident disability; or (iii) death.
(2) Any payment on account of sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability, made by an employer to, or on behalf of, an employee after the expiration of six calendar months following the last calendar month in which the employee worked for such employer.
(3) Any payment made to, or on behalf of, an employee or the employee's beneficiary (i) from or to a trust described in section 401 (a) of Federal Internal Revenue Code and exempt from tax under section 501 (a) of the Code at the time of such payment unless such payment is made to an employee of the trust as remuneration for services rendered as such employee and not as a beneficiary of the trust; or (ii) under or to an annuity plan which, at the time of such payment, is a plan described in section 403 (a) of the Federal Internal Revenue Code; or, (iii) under a simplified employee pension plan 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; or (iv) under or to an annuity contract described in section 403 (b) of the Federal Internal Revenue Code other than 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; or (v) under or to an exempt governmental deferred compensation plan as defined in section 3121 (v) (3) of the Federal Internal Revenue Code; or (vi) to supplement pension benefits under a plan or trust described in any of the foregoing provisions of this paragraph to take into account some portion or all of the increase in the cost of living as determined by the United States 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.
(4) The payment by an employer without deduction from the remuneration of the employee of the tax imposed upon an employee under section 3101 of the Federal Internal Revenue Code, or any acts in addition thereto and amendments thereof.
(5) Remuneration paid in any medium other than cash to an employee for service not in the course of the employer's trade or business.
(6) Tips paid in any medium other than cash. Cash tips received by an employee in any calendar month in the course of the employee's employment by an employer unless the amount of such cash tips is twenty dollars or more and then only in the amount reported by the employee to the employer pursuant to section 6053 (a) of the Federal Internal Revenue Code.
(7) remuneration paid to or on behalf of an employee if at the time of the payment of such remuneration, and to the extent that, it is reasonable to believe that a corresponding deduction is allowable under section 217 of the Federal Internal Revenue Code, determined without regard to section 274(n) of said code.
(8) any payment made, or benefit furnished, to or for the benefit of an employee if at the time of such payment or such furnishing it is reasonable to believe that the employee will be able to exclude such payment or benefit from income under section 127 or 129 of the Federal Internal Revenue Code.
(B) The term ''wages'' shall include: (i) any employer contribution under a qualified cash or deferred arrangement as defined in section 401K of the Federal Internal Revenue Code, to the extent not included in gross income by reason of section 402 (1) (8) of the Code; (ii) any amount treated as an employer contribution under section 414 (h) (2) of the Code; and (iii) any employer contribution under a nonqualified deferred compensation plan. For the purposes of clause (iii) the term nonqualified deferred compensation plan shall mean any plan or other arrangement for deferral of compensation other than a plan described in subparagraph (3) of paragraph (A). Any amount deferred under a nonqualified deferred compensation plan shall be taken into account for purposes of this paragraph as of the date that the services are performed or the date that there is no substantial risk of forfeiture of the rights to such amount, whichever date is later.
(C) Any amount taken into account as wages by reason of clause (iii) of paragraph (B) and the income attributable thereto shall not thereafter be treated as wages for purposes of this subsection.
(t) ''Week'', seven consecutive days beginning on Sunday.
(u) ''American vessel'', any vessel documented or numbered under the laws of the United States; and includes any vessel which is neither documented or numbered under the laws of the United States nor documented under the laws of any foreign country, if its crew is performing services solely for one or more citizens or residents of the United States or corporations organized under the laws of the United States or of any state.
[There is no subsection (v).]
(w) ''Average weekly wage'', an amount equal to one twenty-sixth of the total wages reported for an individual in the two highest quarters of his base period; provided, that if wages reported include not more than two quarters in said base period, his weekly wage shall be deemed to be one thirteenth of the total reported for the highest quarter. If such weekly wage includes a fractional part of a dollar it shall be raised to the next highest dollar.
(x) ''American aircraft'' means an aircraft registered under the laws of the United States.
(y) ''Payments in lieu of contributions'', the money payments to the Unemployment Compensation Fund required by the provisions of subsection (b) of section fourteen A.
(z) ''Seasonal employer'', an employer that, because of climatic conditions or the nature of the product or service, customarily operates all or a functionally distinct occupation within its business only during a regularly recurring period or periods of less than 20 weeks for all seasonal periods during a calendar year and only includes an employer who voluntarily submits a written application to the commissioner. Such application shall be submitted at least sixty days prior to the beginning of the season.
(aa) ''Seasonal employment'', services performed for wages for a seasonal employer during the seasonal period in the employer's seasonal operations, after the effective date of a seasonal determination with respect to the seasonal employer.
(bb) ''Seasonal employee'', an individual who:
(1) has been employed by a seasonal employer in seasonal employment during a regularly recurring period or periods of less than 20 weeks in a calendar year for all seasonal periods, as determined by the commissioner, and
(2) has been hired for a specific temporary seasonal period as determined by the commissioner; and
(3) has been notified in writing at the time hired, or immediately following the seasonal determination by the department, whichever is later:
(A) that the individual is performing services in seasonal employment for a seasonal employer; and
(B) that the individual's employment is limited to the beginning and ending dates of the employer's seasonal period as determined by the department.
(cc) ''Seasonal determination'', a determination made by the commissioner, as to the seasonal nature of the employer, the normal seasonal period or periods of the employer, and the seasonal operations of the employer covered by such determination.
(dd) ''Unemployment compensation debt'' shall have the same meaning as ''covered unemployment compensation debt'' in 26 U.S.C. ? 6402(f)(4).