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Minnesota Legislature

Office of the Revisor of Statutes

Chapter 268

Section 268.035

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268.035 DEFINITIONS.
    Subdivision 1. Scope. The words, terms, and phrases in this section, for the purposes of the
Minnesota Unemployment Insurance Law, have the meaning stated.
    Subd. 2. Agricultural employment. "Agricultural employment" means services:
(1) on a farm, in the employ of any person or family farm corporation in connection with
cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural
commodity, including the raising, shearing, feeding, caring for, training, and management of
livestock, bees, poultry, fur-bearing animals, and wildlife;
(2) in the employ of the owner or tenant or other operator of a farm, in connection with the
operation, management, conservation, improvement, or maintenance of the farm and its tools and
equipment, or in salvaging timber or clearing land of brush and other debris left by a tornado-like
storm, if the major part of the employment is performed on a farm;
(3) in connection with the production or harvesting of any commodity defined as an
agricultural product in United States Code, title 7, section 1626 of the Agricultural Marketing
Act, or in connection with cotton ginning, or in connection with the operation or maintenance of
ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for
supplying and storing water for farming purposes;
(4) in the employ of the operator of a farm in handling, planting, drying, packing, packaging,
processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for
transportation to market, in its unmanufactured state, any agricultural or horticultural commodity;
but only if the operator produced more than one-half of the commodity with respect to which the
employment is performed, or in the employ of a group of operators of farms or a cooperative
organization of which the operators are members, but only if the operators produced more than
one-half of the commodity with respect to which the employment is performed; however, this
clause shall not be applicable to employment performed in connection with commercial canning
or commercial freezing or in connection with any agricultural or horticultural commodity after its
delivery to a terminal market for distribution for consumption; or
(5) on a farm operated for profit if the employment is not in the course of the employer's
trade or business.
For purposes of this subdivision, the term "farm" includes stock, dairy, poultry, fruit,
fur-bearing animals, and truck farms, plantations, ranches, nurseries, orchards, ranges,
greenhouses, or other similar structures used primarily for the raising of agricultural or
horticultural commodities.
    Subd. 2a. Applicant. "Applicant" means an individual who has filed an application for
unemployment benefits and has established or is pursuing the establishment of a benefit account.
    Subd. 3. Back pay. "Back pay" means a retroactive payment of money by an employer to an
employee or former employee for lost wages.
    Subd. 4. Base period. "Base period" means:
    (1) the first four of the last five completed calendar quarters before the effective date of an
applicant's application for unemployment benefits as set forth below:
If the application for unemployment
benefits is effective on or between these
dates:
The base period is the prior:
January 1 - March 31
October 1 - September 30
April 1 - June 30
January 1 - December 31
July 1 - September 30
April 1 - March 31
October 1 - December 31
July 1 - June 30
    (2) if the applicant has insufficient wage credits to establish a benefit account under
clauses (1) and (3), and during the base period under clause (1) an applicant received workers'
compensation for temporary disability under chapter 176 or a similar federal law or similar law of
another state, or if an applicant whose own serious illness caused a loss of work for which the
applicant received compensation for loss of wages from some other source, the applicant may
request an extended base period as follows:
    (i) if an applicant was compensated for a loss of work of seven to 13 weeks, the base
period is the first four of the last six completed calendar quarters before the effective date of
the application for unemployment benefits;
    (ii) if an applicant was compensated for a loss of work of 14 to 26 weeks, the base period
is the first four of the last seven completed calendar quarters before the effective date of the
application for unemployment benefits;
    (iii) if an applicant was compensated for a loss of work of 27 to 39 weeks, the base period
is the first four of the last eight completed calendar quarters before the effective date of the
application for unemployment benefits; and
    (iv) if an applicant was compensated for a loss of work of 40 to 52 weeks, the base period
is the first four of the last nine completed calendar quarters before the effective date of the
application for unemployment benefits;
    (3) if the applicant has insufficient wage credits to establish a benefit account under clause
(1), an alternate base period of the last four completed calendar quarters before the date the
applicant's application for unemployment benefits is effective will be used. This base period can
be used only 30 calendar days or more after the end of the last completed quarter, when a wage
detail report has been, or should have been, filed for that quarter under section 268.044; and
    (4) no base period under clause (1), (2), or (3) may include wage credits upon which a
prior benefit account was established.
    Subd. 5.[Renumbered subd 26a]
    Subd. 6. Benefit year. "Benefit year" means the period of 52 calendar weeks beginning
the date a benefit account is effective. For a benefit account established effective any January
1, April 1, July 1, October 1, or January 2, 2000, or October 2, 2011, the benefit year will be a
period of 53 calendar weeks.
    Subd. 7. Calendar quarter. "Calendar quarter" means the period of three consecutive
calendar months ending on March 31, June 30, September 30, or December 31.
    Subd. 8.[Renumbered subd 2a]
    Subd. 8a. Commissioner. "Commissioner" means the commissioner of employment and
economic development.
    Subd. 9. Construction/independent contractor. A worker doing commercial or residential
building construction or improvement, in the public or private sector, performing services in the
course of the trade, business, profession, or occupation of the employer, is considered an employee
and not an "independent contractor" unless the worker meets all the following conditions:
    (1) maintains a separate business with the independent contractor's own office, equipment,
materials, and other facilities;
    (2) holds or has applied for a federal employer identification number or has filed business
or self-employment income tax returns with the federal Internal Revenue Service based on that
work or service in the previous year;
    (3) operates under contracts to perform specific services or work for specific amounts of
money under which the independent contractor controls the means of performing the services or
work;
    (4) incurs the main expenses related to the service or work that the independent contractor
performs under contract;
    (5) is responsible for the satisfactory completion of work or services that the independent
contractor contracts to perform and is liable for a failure to complete the work or service;
    (6) receives compensation for work or service performed under a contract on a commission
or per job or competitive bid basis and not on any other basis;
    (7) may realize a profit or suffer a loss under contracts to perform work or service;
    (8) has continuing or recurring business liabilities or obligations; and
    (9) the success or failure of the independent contractor's business depends on the relationship
of business receipts to expenditures.
    Subd. 10. Corporation. "Corporation" includes associations, joint-stock companies, and
insurance companies. This definition is not exclusive.
    Subd. 11. Covered agricultural employment. "Covered agricultural employment" means
agricultural employment where:
    (1) The employment is performed for a person who:
    (i) during any calendar quarter in either the current or the prior calendar year paid wages of
$20,000 or more to employees in agricultural employment; or
    (ii) for some portion of a day in each of 20 different calendar weeks, whether or not the
weeks were consecutive, in either the current or prior calendar year employed in agricultural
employment four or more employees, regardless of whether they were employed at the same time.
    (2) Any employee who is a member of a crew furnished by a crew leader to be employed in
agricultural employment for any other person is treated as an employee of the crew leader:
    (i) if the crew leader holds a valid certificate of registration under United States Code, title
29, section 1802, the Migrant and Seasonal Agricultural Worker Protection Act; or substantially
all of the members of the crew operate or maintain tractors, mechanized harvesting or crop
dusting equipment, or any other mechanized equipment, that is provided by the crew leader; and
    (ii) if the employee is not an employee of another person.
    (3) Any employee who is furnished by a crew leader to be employed in agricultural
employment for any other person and who is not treated as an employee of the crew leader
under clause (2):
    (i) the other person and not the crew leader is treated as the employer of the employee; and
    (ii) the other person is treated as having paid wages to the employee in an amount equal to
the amount of wages paid to the employee by the crew leader (either on the crew leader's behalf or
on behalf of the other person) for the agricultural employment performed for the other person.
    (4) The term "crew leader" means an individual who:
    (i) furnishes employees to be employed in agricultural employment for any other person;
    (ii) pays (either on the crew leader's own behalf or on behalf of the other person) the
employees furnished by the crew leader for the agricultural employment performed by them; and
    (iii) has not entered into a written agreement with the other person under which the furnished
employee is designated as an employee of the other person.
    (5) Employment of an officer or shareholder of a family farm corporation is excluded from
covered agricultural employment unless the corporation is an employer under United States Code,
title 26, section 3306(a)(2) of the Federal Unemployment Tax Act.
    (6) Employment of an individual 16 years of age or under is excluded from covered
agricultural employment unless the employer is an employer under United States Code, title 26,
section 3306(a)(2) of the Federal Unemployment Tax Act.
    Subd. 12. Covered employment. "Covered employment" means the following unless
excluded as "noncovered employment" under subdivision 20:
    (1) an employee's entire employment during the calendar quarter if:
    (i) the employment is performed entirely in Minnesota;
    (ii) the employment is performed primarily in Minnesota, and the employment performed
outside Minnesota is incidental to the employment in Minnesota; or
    (iii) the employment is not performed primarily in any one state but some of the employment
is performed in Minnesota and the base of operations or the place from which the employment
is directed or controlled is in Minnesota; or the base of operations or place from which the
employment is directed or controlled is not in any state where part of the employment is
performed, but the employee's residence is in Minnesota;
    (2) an employee's employment during the calendar quarter wherever performed within the
United States or Canada, if:
    (i) the employment is not covered under the unemployment insurance program of any other
state or Canada; and
    (ii) the place from which the employment is directed or controlled is in Minnesota;
    (3) the employment during the calendar quarter of an employee who is a citizen of the
United States, performed outside the United States, except in Canada, in the employ of an
American employer if:
    (i) the employer's principal place of business in the United States is located in Minnesota;
    (ii) the employer has no place of business in the United States, but the employer is an
individual who is a resident of Minnesota, or the employer is a corporation that is organized under
the laws of Minnesota, or the employer is a partnership or a trust and the number of partners or
trustees who are residents of Minnesota is greater than the number who are residents of any
one other state;
    (iii) none of the criteria of subclauses (i) and (ii) is met but the employer has elected coverage
in Minnesota, or the employer having failed to elect coverage in any state, an applicant has made
an application for unemployment benefits under section 268.07, based on the employment;
    (iv) an "American employer," for the purposes of this subdivision, means an individual
who is a resident of the United States, or a partnership if two-thirds or more of the partners are
residents of the United States, or a trust, if all of the trustees are residents of the United States, or
a corporation organized under the laws of the United States, or of any state; or
    (v) as used in this subdivision, the term "United States" includes the states, the District of
Columbia, the Commonwealth of Puerto Rico, and the Virgin Islands;
    (4) all employment during the calendar quarter performed by an officer or member of the
crew of an American vessel on or in connection with the vessel, if the operating office from
which the operations of the vessel operating on navigable waters within, or within and without,
the United States are ordinarily and regularly supervised, managed, directed, and controlled
is in Minnesota; and
    (5) for the purposes of satisfying the period of ineligibility under section 268.095,
subdivision 10
, "covered employment" includes covered employment under an unemployment
insurance program of any other state or employment covered under an unemployment insurance
program established by an act of Congress.
    Subd. 12a. Department. "Department" means the Department of Employment and
Economic Development.
    Subd. 12b. Electronic transmission. "Electronic transmission" means a communication sent
by electronic, digital, magnetic, wireless, optical, electromagnetic or similar capabilities, and,
when permitted by the commissioner, a telephone communication.
    Subd. 13. Employee. "Employee" means:
    (1) every individual who is performing or has performed services for an employer in
employment; or
    (2) each individual employed to perform or assist in performing the work of any agent
or employee of the employer is considered to be an employee of that employer whether the
individual was hired or paid directly by that employer or by the agent or employee, provided the
employer had actual or constructive knowledge of the work.
    Subd. 14. Employer. "Employer" means any person that has had one or more employees
during the current or the prior calendar year including any person that has elected, under section
268.042, to be subject to the Minnesota Unemployment Insurance Law and a joint venture
composed of one or more employers.
    An employee leasing company, professional employer organization, or similar person that
has been assigned a tax account under section 268.046 is an employer for purposes of this chapter.
    Subd. 15. Employment. (a) "Employment" means service performed by:
    (1) an individual who is considered an employee under the common law of
employer-employee and not considered an independent contractor;
    (2) an officer of a corporation;
    (3) a member of a limited liability company who is considered an employee under the
common law of employer-employee;
    (4) product demonstrators in retail stores or other locations to aid in the sale of products.
The person that pays the wages is considered the employer; or
    (5) an individual who performs services for a person for compensation, as:
    (i) an agent-driver or commission-driver engaged in distributing meat products, vegetable
products, fruit products, beverages, or laundry or dry cleaning services; or
    (ii) a traveling or city salesperson, other than as an agent-driver or commission-driver,
engaged full-time in the solicitation on behalf of the person, of orders from wholesalers, retailers,
contractors, or operators of hotels, restaurants, or other similar establishments for merchandise for
resale or supplies for use in their business operations.
    This clause applies only if the contract of service provides that substantially all of the
services are to be performed personally by the individual, and the services are part of a continuing
relationship with the person for whom the services are performed, and the individual does not
have a substantial investment in facilities used in connection with the performance of the services,
other than facilities for transportation.
    (b) Employment does not include service as a juror.
    Subd. 16. Family farm corporation. "Family farm corporation" has the meaning given to
it in section 500.24, subdivision 2.
    Subd. 17. Filing; filed. "Filing" or "filed" means the delivery of any document to the
commissioner or any of the commissioner's agents, or the depositing of the document in the
United States mail properly addressed to the department with postage prepaid, in which case the
document is considered filed on the day indicated by the cancellation mark of the United States
Postal Service.
    If, where allowed, an application, appeal, or other required action is made by electronic
transmission, it is considered filed on the day received by the department.
    Subd. 18.[Renumbered subd 25a]
    Subd. 19. High quarter. "High quarter" means the calendar quarter in an applicant's base
period with the highest amount of wage credits.
    Subd. 20. Noncovered employment. "Noncovered employment" means:
    (1) employment for the United States government or an instrumentality thereof, including
military service;
    (2) employment for a state, other than Minnesota, or a political subdivision or instrumentality
thereof;
    (3) employment for a foreign government;
    (4) employment for an instrumentality wholly owned by a foreign government, if the
employment is of a character similar to that performed in foreign countries by employees of
the United States government or an instrumentality thereof and the United States Secretary
of State has certified that the foreign government grants an equivalent exemption to similar
employment performed in the foreign country by employees of the United States government
and instrumentalities thereof;
    (5) employment covered under United States Code, title 45, section 351, the Railroad
Unemployment Insurance Act;
    (6) employment covered by a reciprocal arrangement between the commissioner and another
state or the federal government that provides that all employment performed by an individual for
an employer during the period covered by the reciprocal arrangement is considered performed
entirely within another state;
    (7) employment for a church or convention or association of churches, or an organization
operated primarily for religious purposes that is operated, supervised, controlled, or principally
supported by a church or convention or association of churches described in United States
Code, title 26, section 501(c)(3) of the federal Internal Revenue Code and exempt from income
tax under section 501(a);
    (8) employment of a duly ordained or licensed minister of a church in the exercise of a
ministry or by a member of a religious order in the exercise of duties required by the order, for
Minnesota or a political subdivision or an organization described in United States Code, title
26, section 501(c)(3) of the federal Internal Revenue Code and exempt from income tax under
section 501(a);
    (9) employment of an individual receiving rehabilitation of "sheltered" work in a facility
conducted for the purpose of carrying out a program of rehabilitation for individuals whose
earning capacity is impaired by age or physical or mental deficiency or injury or a program
providing "sheltered" work for individuals who because of an impaired physical or mental capacity
cannot be readily absorbed in the competitive labor market. This clause applies only to services
performed for Minnesota or a political subdivision or an organization described in United States
Code, title 26, section 501(c)(3) of the federal Internal Revenue Code and exempt from income tax
under section 501(a) in a facility certified by the Rehabilitation Services Branch of the department
or in a day training or habilitation program licensed by the Department of Human Services;
    (10) employment of an individual receiving work relief or work training as part of an
unemployment work relief or work training program assisted or financed in whole or in part by
any federal agency or an agency of a state or political subdivision thereof. This clause applies
only to employment for Minnesota or a political subdivision or an organization described in
United States Code, title 26, section 501(c)(3) of the federal Internal Revenue Code and exempt
from income tax under section 501(a). This clause does not apply to programs that require
unemployment benefit coverage for the participants;
    (11) employment for Minnesota or a political subdivision as an elected official, a member of
a legislative body, or a member of the judiciary;
    (12) employment as a member of the Minnesota National Guard or Air National Guard;
    (13) employment for Minnesota, a political subdivision, or instrumentality thereof, as an
employee serving only on a temporary basis in case of fire, flood, tornado, or similar emergency;
    (14) employment as an election official or election worker for Minnesota or a political
subdivision, but only if the compensation for that employment was less than $1,000 in a calendar
year;
    (15) employment for Minnesota that is a major policy making or advisory position in the
unclassified service, including those positions established under section 43A.08, subdivision 1a;
    (16) employment for a political subdivision of Minnesota that is a nontenured major policy
making or advisory position;
    (17) domestic employment in a private household, local college club, or local chapter of
a college fraternity or sorority performed for a person, only if the wages paid in any calendar
quarter in either the current or prior calendar year to all individuals in domestic employment
totaled less than $1,000.
    "Domestic employment" includes all service in the operation and maintenance of a private
household, for a local college club, or local chapter of a college fraternity or sorority as
distinguished from service as an employee in the pursuit of an employer's trade or business;
    (18) employment of an individual by a son, daughter, or spouse, and employment of a child
under the age of 18 by the child's father or mother;
    (19) employment of an inmate of a custodial or penal institution;
    (20) employment for a school, college, or university by a student who is enrolled and is
regularly attending classes at the school, college, or university;
    (21) employment of an individual who is enrolled as a student in a full-time program at
a nonprofit or public educational institution that maintains a regular faculty and curriculum
and has a regularly organized body of students in attendance at the place where its educational
activities are carried on, taken for credit at the institution, that combines academic instruction
with work experience, if the employment is an integral part of the program, and the institution has
so certified to the employer, except that this clause does not apply to employment in a program
established for or on behalf of an employer or group of employers;
    (22) employment of university, college, or professional school students in an internship or
other training program with the city of St. Paul or the city of Minneapolis under Laws 1990,
chapter 570, article 6, section 3;
    (23) employment for a hospital by a patient of the hospital. "Hospital" means an institution
that has been licensed by the Department of Health as a hospital;
    (24) employment as a student nurse for a hospital or a nurses' training school by an individual
who is enrolled and is regularly attending classes in an accredited nurses' training school;
    (25) employment as an intern for a hospital by an individual who has completed a four-year
course in an accredited medical school;
    (26) employment as an insurance salesperson, by other than a corporate officer, if all the
wages from the employment is solely by way of commission. The word "insurance" includes
an annuity and an optional annuity;
    (27) employment as an officer of a township mutual insurance company or farmer's mutual
insurance company operating under chapter 67A;
    (28) employment of a corporate officer, if the officer owns 25 percent or more of the
employer corporation, and employment of a member of a limited liability company, if the member
owns 25 percent or more of the employer limited liability company;
    (29) employment as a real estate salesperson, by other than a corporate officer, if all the
wages from the employment is solely by way of commission;
    (30) employment as a direct seller as defined in United States Code, title 26, section 3508;
    (31) employment of an individual under the age of 18 in the delivery or distribution of
newspapers or shopping news, not including delivery or distribution to any point for subsequent
delivery or distribution;
    (32) casual employment performed for an individual, other than domestic employment under
clause (17), that does not promote or advance that employer's trade or business;
    (33) employment in "agricultural employment" unless considered "covered agricultural
employment" under subdivision 11; or
    (34) if employment during one-half or more of any pay period was covered employment,
all the employment for the pay period is considered covered employment; but if during more
than one-half of any pay period the employment was noncovered employment, then all of the
employment for the pay period is considered noncovered employment. "Pay period" means
a period of not more than a calendar month for which a payment or compensation is ordinarily
made to the employee by the employer.
    Subd. 21. Person. "Person" means:
(1) an individual or any type of organization or entity, resident or nonresident, for profit or
nonprofit, religious, charitable or educational, including any receiver or trustee in a bankruptcy,
successor of any of the foregoing, or legal representative of a deceased individual; and
(2) any government entity, state or federal, foreign or domestic, or Indian tribe, including any
subdivision or instrumentality thereof owned wholly or in part.
    Subd. 21a. Reemployment assistance training. (a) An applicant is in "reemployment
assistance training" when:
    (1) reasonable and suitable employment for the applicant does not exist in the labor market
area and it is necessary that the applicant receive training in order to obtain suitable employment;
    (2) the curriculum, facilities, staff, and other essentials are adequate to achieve the training
objective;
    (3) the training is vocational in nature or short term academic training vocationally directed
to an occupation or skill for which there are reasonable employment opportunities available
to the applicant;
    (4) the training course is considered full time by the training provider; and
    (5) the applicant is making satisfactory progress in the training.
    (b) Full-time training provided through the dislocated worker program, the Trade Act of
1974, as amended, or the North American Free Trade Agreement is considered "reemployment
assistance training," if that training course is in accordance with the requirements of that program.
    (c) An applicant is considered in reemployment assistance training only if the training course
has actually started or is scheduled to start within 30 calendar days.
    Subd. 22. State. "State" includes, in addition to the states of the United States, the
Commonwealth of Puerto Rico, the District of Columbia, and the Virgin Islands.
    Subd. 23. State's average annual and average weekly wage. (a) On or before June 30 of
each year, the commissioner shall calculate the state's average annual wage and the state's average
weekly wage in the following manner:
    (1) The sum of the total monthly covered employment reported by all employers for the prior
calendar year is divided by 12 to calculate the average monthly covered employment.
    (2) The sum of the total wages paid for all covered employment reported by all employers
for the prior calendar year is divided by the average monthly covered employment to calculate the
state's average annual wage.
    (3) The state's average annual wage is divided by 52 to calculate the state's average weekly
wage.
    (b) For purposes of calculating the amount of taxable wages, the state's average annual wage
applies to the calendar year following the calculation.
    (c) For purposes of calculating the state's maximum weekly unemployment benefit amount
available on any benefit account under section 268.07, subdivision 2, the state's average weekly
wage applies to the one-year period beginning the last Sunday in October of the calendar year of
the calculation.
    Subd. 23a. Suitable employment. (a) Suitable employment means employment in the
applicant's labor market area that is reasonably related to the applicant's qualifications. In
determining whether any employment is suitable for an applicant, the degree of risk involved
to the health and safety, physical fitness, prior training, experience, length of unemployment,
prospects for securing employment in the applicant's customary occupation, and the distance of
the employment from the applicant's residence is considered.
    (b) In determining what is suitable employment, primary consideration is given to the
temporary or permanent nature of the applicant's separation from employment and whether the
applicant has favorable prospects of finding employment in the applicant's usual or customary
occupation at the applicant's past wage level within a reasonable period of time.
    If prospects are unfavorable, employment at lower skill or wage levels is suitable if the
applicant is reasonably suited for the employment considering the applicant's education, training,
work experience, and current physical and mental ability.
    The total compensation must be considered, including the wage rate, hours of employment,
method of payment, overtime practices, bonuses, incentive payments, and fringe benefits.
    (c) When potential employment is at a rate of pay lower than the applicant's former rate,
consideration must be given to the length of the applicant's unemployment and the proportion
of difference in the rates. Employment that may not be suitable because of lower wages during
the early weeks of the applicant's unemployment may become suitable as the duration of
unemployment lengthens.
    (d) For an applicant seasonally unemployed, suitable employment includes temporary work
in a lower skilled occupation that pays average gross weekly wages equal to or more than 150
percent of the applicant's weekly unemployment benefit amount.
    (e) If a majority of the applicant's wage credits were earned from part-time employment,
part-time employment in a position with comparable skills and comparable hours that pays
average gross weekly wages equal to or more than 150 percent of the applicant's weekly
unemployment benefit amount is considered suitable employment.
    (f) To determine suitability of employment in terms of shifts, the arrangement of hours in
addition to the total number of hours is to be considered. Employment on a second, third, rotating,
or split shift is suitable employment if it is customary in the occupation in the labor market area.
    (g) Employment is not considered suitable if:
    (1) the position offered is vacant because of a labor dispute;
    (2) the wages, hours, or other conditions of employment are substantially less favorable than
those prevailing for similar employment in the labor market area; or
    (3) as a condition of becoming employed, the applicant would be required to join a company
union or to resign from or refrain from joining any bona fide labor organization.
    Subd. 24. Taxable wages. (a) "Taxable wages" means those wages paid to an employee in
covered employment each calendar year up to an amount equal to 60 percent of the state's average
annual wage, rounded to the nearest $1,000.
    (b) Taxable wages includes the amount of wages paid for covered employment by the
employer's predecessor when there has been an experience rating history transfer under section
268.051, subdivision 4.
    Subd. 25. Taxes. "Taxes" means the money payments required by the Minnesota
Unemployment Insurance Law to be paid into the trust fund by an employer on account of paying
wages to employees in covered employment.
    Subd. 25a. Trust fund. "Trust fund" means the Minnesota unemployment insurance trust
fund established by section 268.194.
    Subd. 25b. Trucking industry/independent contractors. In the trucking industry, an
owner-operator of a vehicle that is licensed and registered as a truck, tractor, or truck-tractor
by a governmental motor vehicle regulatory agency is an independent contractor, and is not
considered an employee, while performing services in the operation of the truck only if each
of the following factors is present:
    (1) the individual owns the equipment or holds it under a bona fide lease arrangement;
    (2) the individual is responsible for the maintenance of the equipment;
    (3) the individual bears the principal burdens of the operating costs, including fuel, repairs,
supplies, vehicle insurance, and personal expenses while on the road;
    (4) the individual is responsible for supplying the necessary personal services to operate
the equipment;
    (5) the individual's compensation is based on factors related to the work performed, such as a
percentage of any schedule of rates, and not on the basis of the hours or time expended; and
    (6) the individual enters into a written contract that specifies the relationship to be that of an
independent contractor and not that of an employee.
    Subd. 26. Unemployed. An applicant is considered "unemployed" (1) in any week that
the applicant performs less than 32 hours of service in employment, covered employment,
noncovered employment, self-employment, or volunteer work; and (2) any earnings with respect
to that week are less than the applicant's weekly unemployment benefit amount.
    Subd. 26a. Unemployment benefits. "Unemployment benefits" means the money payments
portion of the Minnesota unemployment insurance program available to an applicant.
    Subd. 27. Wage credits. "Wage credits" mean the amount of wages paid within an applicant's
base period for covered employment.
    Subd. 28. Wage detail report. "Wage detail report" means the report on each employee in
covered employment required from an employer on a calendar quarter basis under section 268.044.
    Subd. 29. Wages. (a) "Wages" means all compensation for services, including commissions;
bonuses, awards, and prizes; severance payments; standby pay; vacation and holiday pay; back
pay as of the date of payment; tips and gratuities paid to an employee by a customer of an
employer and accounted for by the employee to the employer; sickness and accident disability
payments, except as otherwise provided in this subdivision; and the cash value of housing,
utilities, meals, exchanges of services, and any other goods and services provided to compensate
for an employee's services, except:
    (1) the amount of any payment made to, or on behalf of, an employee under a plan
established by an employer that makes provision for employees generally or for a class or classes
of employees, including any amount paid by an employer for insurance or annuities, or into a
plan, to provide for a payment, on account of (i) retirement or (ii) medical and hospitalization
expenses in connection with sickness or accident disability, or (iii) death;
    (2) the payment by an employer of the tax imposed upon an employee under United
States Code, title 26, section 3101 of the Federal Insurance Contribution Act, with respect to
compensation paid to an employee for domestic employment in a private household of the
employer or for agricultural employment;
    (3) any payment made to, or on behalf of, an employee or beneficiary (i) from or to a trust
described in United States Code, title 26, section 401(a) of the federal Internal Revenue Code,
that is exempt from tax under section 501(a) at the time of the payment unless the payment is
made to an employee of the trust as compensation for services as an employee and not as a
beneficiary of the trust, or (ii) under or to an annuity plan that, at the time of the payment, is
a plan described in section 403(a);
    (4) the value of any special discount or markdown allowed to an employee on goods
purchased from or services supplied by the employer where the purchases are optional and do not
constitute regular or systematic payment for services;
    (5) customary and reasonable directors' fees paid to individuals who are not otherwise
employed by the corporation of which they are directors;
    (6) the payment to employees for reimbursement of meal expenses when employees are
required to perform work after their regular hours;
    (7) the payment into a trust or plan for purposes of providing legal or dental services if
provided for all employees generally or for a class or classes of employees;
    (8) the value of parking facilities provided or paid for by an employer, in whole or in part, if
provided for all employees generally or for a class or classes of employees;
    (9) royalties to an owner of a franchise, license, copyright, patent, oil, mineral, or other right;
    (10) advances or reimbursements for traveling or other bona fide ordinary and necessary
expenses incurred or reasonably expected to be incurred in the business of the employer.
Traveling and other reimbursed expenses must be identified either by making separate payments
or by specifically indicating the separate amounts where both wages and expense allowances
are combined in a single payment;
    (11) residual payments to radio, television, and similar artists that accrue after the production
of television commercials, musical jingles, spot announcements, radio transcriptions, film sound
tracks, and similar activities;
    (12) supplemental unemployment benefits paid under a plan established by an employer,
that makes provisions for employees generally or for a class or classes of employees for the
supplementing of unemployment benefits under the written terms of an agreement, contract, trust
arrangement, or other instrument if the plan provides benefits that are only supplemental to, and
does not replace or duplicate any state or federal unemployment benefits. The plan must provide
that funds are paid solely for the supplementing of state or federal unemployment benefits. The
plan must provide that any supplemental benefits are payable only if the applicant has applied for
all unemployment benefits available. The plan must provide that supplemental benefits, when
combined with the applicant's weekly unemployment benefits available, may not exceed the
applicant's regular weekly pay. The plan must not allow the assignment of supplemental benefits
or payment upon the employee's withdrawal from the plan, or quitting of employment or the
termination of the plan. The plan must not require any consideration from the applicant and
must not be designed for the purpose of avoiding the payment of Social Security obligations, or
unemployment taxes on money disbursed from the plan;
    (13) sickness or accident disability payments made by the employer after the expiration of six
calendar months following the last calendar month that the individual worked for the employer;
    (14) disability payments made under the provisions of any workers' compensation law;
    (15) sickness or accident disability payments made by a third party payer such as an
insurance company; or
    (16) payments made into a trust fund, or for the purchase of insurance or an annuity, to
provide for sickness or accident disability payments to employees under a plan or system
established by the employer that provides for the employer's employees generally or for a class or
classes of employees.
    (b) Nothing in this subdivision excludes from the term "wages" any payment made under
any type of salary reduction agreement, including payments made under a cash or deferred
arrangement and cafeteria plan, as defined in United States Code, title 26, sections 401(k) and
125 of the federal Internal Revenue Code, to the extent that the employee has the option to
receive the payment in cash.
    (c) Wages includes payments made for services as a caretaker. Unless there is a contract or
other proof to the contrary, compensation is considered as being equally received by a married
couple where the employer makes payment to only one spouse, or by all tenants of a household
who perform services where two or more individuals share the same dwelling and the employer
makes payment to only one individual.
    (d) Wages includes payments made for services by a migrant family. Where services
are performed by a married couple or a family and an employer makes payment to only one
individual, each worker is considered as having received an equal share of the compensation
unless there is a contract or other proof to the contrary.
    (e) Wages includes advances or draws against future earnings, when paid, unless the
payments are designated as a loan or return of capital on the books of the employer at the time of
payment.
    (f) Wages includes payments made by a subchapter "S" corporation, as organized under
the Internal Revenue Code, to or on behalf of officers and shareholders that are reasonable
compensation for services performed for the corporation.
    For a subchapter "S" corporation, wages does not include:
    (1) a loan for business purposes to an officer or shareholder evidenced by a promissory note
signed by an officer before the payment of the loan proceeds and recorded on the books and
records of the corporation as a loan to an officer or shareholder;
    (2) a repayment of a loan or payment of interest on a loan made by an officer to the
corporation and recorded on the books and records of the corporation as a liability;
    (3) a reimbursement of reasonable corporation expenses incurred by an officer and
documented by a written expense voucher and recorded on the books and records of the
corporation as corporate expenses; and
    (4) a reasonable lease or rental payment to an officer who owns property that is leased or
rented to the corporation.
    Subd. 30. Wages paid. (a) "Wages paid" means the amount of wages that have been actually
paid or that have been credited to or set apart so that payment and disposition is under the control
of the employee. Wage payments delayed beyond the regularly scheduled pay date are considered
"wages paid" on the missed pay date. Back pay is considered "wages paid" on the date of actual
payment. Any wages earned but not paid with no scheduled date of payment is considered "wages
paid" on the last day of employment.
    (b) Wages paid does not include wages earned but not paid except as provided for in this
subdivision.
    Subd. 31. Week. "Week" means calendar week, ending at midnight Saturday.
    Subd. 32. Weekly unemployment benefit amount. "Weekly unemployment benefit amount"
means the amount of unemployment benefits computed under section 268.07, subdivision 2,
paragraph (b).
History: 1998 c 265 s 4; 1999 c 107 s 2-15,66; 2000 c 343 s 4; 2001 c 175 s 3-8,52; 1Sp2003
c 3 art 2 s 1,2,20; 2004 c 183 s 4-12; 2005 c 112 art 2 s 2-7; 2007 c 128 art 1 s 1,2; art 2 s 1;
art 3 s 1-3; art 4 s 2-4; art 5 s 2; art 6 s 5-13
NOTE:Subdivision 9 is repealed by Laws 2007, chapter 135, article 3, section 42, effective
January 1, 2009. Laws 2007, chapter 135, article 3, section 42, the effective date.