Manufacturing establishments, as those words are used in this act, shall mean and include all smelters, oil refineries, cement works, mills of every kind, machine and repair shops, and in addition to the foregoing, any other kind or character of manufacturing establishment, of any nature or description whatsoever, wherein any natural product or other articles or materials of any kind, in a raw or unfinished or incomplete state or condition, are converted into a new or improved or different form. Wherever the expression occurs in this act in substantially the following words: "every person owning or operating any manufacturing establishment," or where language similar to that is used, the word "person" in that connection shall be held and construed to mean any person or persons, partnership, corporation, receiver, trust, trustee, or any other person or combination of persons, either natural or artificial, by whatever name he or they may be called.
27-1-102. Doors at public places to open outward; handrails on stairs; enforcement.
All doors leading into or to any manufacturing establishment, mills, workshops, offices, bakeries, laundries, stores, hotels, theaters, halls, or other buildings in which people are employed, shall be so constructed as to open outward, when practicable, and shall not be locked, bolted or fastened so as to prevent free egress during working hours. Proper and substantial handrails shall be provided on all stairways in manufacturing establishments, mills, workshops, offices, bakeries, laundries, stores, hotels, theaters, halls, and other buildings where people are employed or rooms are rented to the public. The department of workforce services shall have authority to enforce by due process of law, the provisions of this section, and other laws relating to fire escapes.
27-1-103. Safety devices on elevators and machinery.
The openings of all hoistways, hatchways, elevators, well holes and stairways in manufacturing establishments, mills, workshops, bakeries, laundries, stores, hotels, theaters, halls, or any other kind of establishment where labor is employed, or machinery used, shall be protected by trapdoors, hatches, fences, automatic gates or other safeguards, and all due diligence shall be used to keep all such means of protection closed, except when it is necessary to have the same open for use when practicable. All machinery, in use in any mercantile, manufacturing, or any other establishment whatsoever where labor is employed, shall be equipped, with proper shifters for throwing on or off pulleys, loose pulleys and other such safeguards as may be deemed necessary by the department of workforce services for the proper safeguard of life and limb.
Nothing herein contained, as applied to inspection and application of safety devices, shall be construed to be applicable to coal and metalliferous mines and workshops connected therewith, nor to railroads engaged in interstate commerce and workshops connected therewith.
27-1-105. Employees' contract releasing employer from personal injury liability void.
It shall be unlawful for any person, company or corporation to require of its servants or employees, as a condition of their employment or otherwise, any contract or agreement whereby such person, company or corporation shall be released or discharged from liability or responsibility on account of personal injuries received by such servants or employees while in service of such person, company or corporation, by reason of the negligence of such person, company or corporation, or the agents or employees thereof, and such contracts shall be absolutely null and void.
27-1-106. Certain nonresident employers required to post bond; exceptions.
(a) All firms, corporations or employers of any kind who are nonresident employers and expect to pay wages in the state of Wyoming in excess of four thousand dollars ($4,000.00) in any month as a result of conducting business within Wyoming, are required to file with the director of the department of workforce services a surety bond or other security meeting the requirements of this section, approved by the director.
(b) The bond or other security required by subsection (a) of this section shall be in the amount of eight thousand dollars ($8,000.00) plus an additional two thousand dollars ($2,000.00) for each one thousand dollars ($1,000.00) or fraction thereof that the expected wages in any month exceed four thousand dollars ($4,000.00) up to expected wages in any month of twenty thousand dollars ($20,000.00). For expected wages in any month that exceed twenty thousand dollars ($20,000.00), the bond or other security amount shall be one thousand dollars ($1,000.00) for each additional one thousand dollars ($1,000.00) or fraction thereof of expected wages.
(c) The bond or security provided for in this section shall ensure:
(i) The payment of wages of employees working in the state;
(ii) The payment of civil penalties the occupational health and safety commission may assess; and
(iii) All other payments or obligations of the nonresident employer required by:
(A) The Wyoming Worker's Compensation Act unless waived by the director pursuant to W.S. 27-14-302;
(B) Any other section under title 27 of Wyoming statutes or any department of workforce services rule or regulation.
(d) The nonresident employer shall post additional security before performing work under any new contract if the security previously posted under this section has expired.
(e) Upon application by a nonresident employer, the director may permit the withdrawal of any security if the employer has:
(i) Complied with the security requirements of this section and made all necessary payments for a period of two (2) years;
(ii) Demonstrated that he has been a resident of the state for two (2) years and intends to remain a resident; or
(iii) Acquired real property as a nonresident with an unencumbered value greater than or equal to the value of the bond or other security required by subsection (b) of this section.
(f) If the anticipated work has ceased before the expiration of twenty-four (24) months, or less than fifty percent (50%) of the largest work force is still working in Wyoming, the security deposited by the nonresident employer shall be forfeited and retained by the division in an amount equal to the reserved amounts for compensable injuries to the nonresident employer's employees. Upon application by a nonresident employer, the division shall refund the amount not forfeited pursuant to this subsection except for any disbursements made under subsection (c) of this section.
(g) This section does not apply to charitable or religious organizations.
27-1-107. Nonresident employers to post bond; penalty.
Any person or persons, corporation, agent, manager or employer who shall violate or fail to comply with any of the provisions of W.S. 27-1-106 shall be deemed guilty of a misdemeanor, and upon conviction thereof shall for each offense, be subject to a fine of not more than one thousand dollars ($1,000.00), imprisonment for not more than one (1) year, or both.
Any person who violates or omits to comply with any of the provisions of this act, or any final order of the department of workforce services is guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than one thousand dollars ($1,000.00), imprisonment in the county jail for not more than one (1) year, or both.
The district attorney for any county in this state shall, upon receipt of a verified complaint from the director of the department of workforce services or a final agency decision of the department of workforce services prosecute to termination before any court of competent jurisdiction, in the name of the state of Wyoming, actions or proceedings against any person or persons charged with violation of any of the provisions of this act, or any of the laws of this state enacted for the protection of employees.
27-1-110. State rehabilitation council; membership; chairman.
(a) There is established a permanent council within the department of workforce services to be known as the Wyoming governor's state rehabilitation council, to consist of:
(i) At least one (1) representative of the statewide independent living council;
(ii) At least one (1) representative of a parent training and information center;
(iii) At least one (1) representative of the client assistance program;
(iv) At least one (1) vocational rehabilitative counselor;
(v) At least one (1) representative of community rehabilitation program service providers;
(vi) Four (4) representatives of business, industry and labor;
(vii) At least two (2) representatives of disability advocacy groups;
(viii) At least two (2) current or former applicants of vocational rehabilitation services;
(ix) The administrator of the division of vocational rehabilitation;
(x) At least one (1) representative of the department of education;
(xi) At least one (1) representative of the state workforce investment board.
(b) The director of the department of workforce services shall be an ex officio, nonvoting member of the state rehabilitation council.
(c) A majority of council members shall be persons who are:
(i) Individuals with disabilities;
(ii) Not employed by the division of vocational rehabilitation.
(d) One (1) of the members shall be elected chairman by the members of the council. The appointive members shall hold office for the term specified. The council shall be nonpartisan. The governor may remove any council member as provided in W.S. 9-1-202.
The department of workforce services, with advice of the council, shall carry on a continuing program to promote the employment of physically, mentally, emotionally and otherwise handicapped persons by creating statewide interest in the rehabilitation and employment of the handicapped and by obtaining and maintaining cooperation from all public and private groups and individuals in the field. The council shall work in cooperation with the president's committee on employment of the handicapped in order to more effectively carry out the purposes of this act.
27-1-112. Authority of council to receive gifts, grants or donations.
The department of workforce services, on behalf of the council, is authorized to receive any gifts, grants or donations made for any of the purposes of its program.
27-1-113. Employer immunity for disclosure of certain employee information; rebuttal of presumption.
(a) An employer who discloses information about a former employee's job performance to a prospective employer or to an employer of the former employee is presumed to be acting in good faith. Unless lack of good faith is shown by a preponderance of evidence, the employer is immune from civil liability for the disclosure or for the consequences resulting from the disclosure.
(b) For purposes of subsection (a) of this section, the presumption of good faith is rebutted upon a showing that the information disclosed by the former employer was knowingly false or deliberately misleading or was rendered with malicious purpose.
(a) A temporary service contractor for temporary workers is not entitled to collect a fee from an employer for the permanent employment of a temporary worker placed by the temporary service contractor, unless the employer is notified in writing of the existence and the amount of the fee prior to the date of services being rendered by a temporary worker to the employer.
(b) For the purpose of this section "temporary service contractor" means any person, firm, association or corporation conducting a business that employs individuals directly for the purpose of furnishing services of the employed individuals on a temporary basis to others.
27-1-115. State directory of new hires; requirements; exceptions; definitions.
(a) A department designated by the governor shall maintain a directory of new hires using information provided by employers in the state. The department shall use the information in the directory of new hires to:
(i) Provide information to the department of family services as necessary to:
(A) Locate individuals for purposes of establishing paternity and establishing, modifying and enforcing child support obligations;
(B) Notify employers of wage withholding orders.
(ii) Provide information to the national directory of new hires; and
(iii) Maintain information as necessary for the administration of employment security and worker's compensation programs.
(b) Except as provided in subsection (c) of this section, each employer in the state shall furnish to the department of workforce services within twenty (20) days of hiring a new employee, or in the case of an employer transmitting reports magnetically or electronically, by two (2) monthly transmissions not less than twelve (12) days nor more than sixteen (16) days apart, a report that contains the name, address and social security number of the employee, the date services for remuneration were first performed by the employee and the name and address of, and identifying number assigned to, the employer under section 6109 of the Internal Revenue Code. The report shall be made on a W-4 form approved by the internal revenue service or, at the option of the employer, on an equivalent form approved by the department. The form may be transmitted by first class mail, electronically or magnetically in a format acceptable to the designated department.
(c) An employer that has employees who are employed in Wyoming and any other state and who transmits the report required under subsection (b) of this section by electronic or magnetic means may elect to submit the report to either state in accordance with federal law. Any department, agency or instrumentality of the federal government operating in the state may submit the report required under subsection (b) of this section to the national directory of new hires in accordance with federal law.
(d) For purposes of this section:
(i) "Employee" means an individual eighteen (18) years of age or older who is an employee within the meaning of chapter 24 of the Internal Revenue Code of 1986, but does not include an employee of a federal or state agency performing intelligence or counter-intelligence functions if the head of such agency has determined that reporting the information required by this section could endanger the safety of the individual or compromise an ongoing investigation or intelligence operation. If the federal government seeks to impose sanctions on Wyoming for failure to report new hires under eighteen (18) years of age, the department may include such individuals within the definition of employee for purposes of this section;
(ii) "Employer" means as defined in section 3401(d) of the Internal Revenue Code of 1986 and includes any governmental agency and any labor organization;
(iii) "Newly hired employee" means an individual who has not previously been employed by the employer or was previously employed by the employer but has been separated from employment with that employer for at least sixty (60) days.
(e) In the event that the federal law requiring the state to maintain a directory of new hires is repealed, employers shall not be required to submit reports as provided by subsections (b) and (c) of this section. The state shall not thereafter maintain the directory of new hires required under subsection (a) of this section.
27-1-116. Business relationship between franchisors and
franchisees; business relationship between franchisors and employees of franchisees.
(a) Neither a franchisee nor a franchisee's employee shall be deemed to be an employee of the franchisor for any purpose under this title, unless otherwise agreed to in writing by the franchisor and the franchisee.
(b) This section shall not apply to a voluntary agreement entered into between the United States department of labor and a franchisee.
(c) As used in this section, "franchisee" and "franchisor" have the same definitions as set out in 16 C.F.R. 436.1.
(a) As used in this section:
(i) "Financial institution" means any bank, savings and loan association or credit union chartered under the laws of Wyoming, the laws of the United States or the laws of another territory or state of the United States that is insured by the federal deposit insurance corporation or the national credit union administration. "Financial institution" shall include any special purpose depository institution as defined by W.S. 13-1-101(a)(xvi);
(ii) "Hiring party" means a person that hires or enters into a contract with an independent contractor;
(iii) "Independent contractor" means as defined by W.S. 27-14-102(a)(xxiii);
(iv) "Portable benefit account" means an account opened by an independent contractor that is:
(A) Administered by a portable benefit account provider; and
(B) Assigned to a beneficiary of one (1) or more benefit plans for the purpose of funding the purchase of one (1) or more benefit plans, including but not limited to plans that provide health benefits, income replacement insurance, vision and dental insurance, life insurance or retirement benefits.
(v) "Portable benefit account provider" means the administrator of a portable benefit account and shall include:
(A) A financial institution;
(B) An investment management firm;
(C) A technology provider or program manager that offers services through a financial institution or investment management firm;
(D) Any other person that demonstrates to the satisfaction of the state banking commissioner that the manner in which the person will administer the portable benefit account is consistent with the requirements of this section.
(b) Any person, including but not limited to an independent contractor, internet-based company and application-based company, may voluntarily contribute funds to a portable benefit account for or on behalf of an independent contractor.
(c) Any contribution to a portable benefit account made under this section shall not be used as a criterion or factor for determining a person's employment classification, including a classification or determination under W.S. 27-3-104 or 27-14-102(a)(xxiii).
(d) A contribution to a portable benefit account under this section may be made using the funds of the hiring party or as a percentage of funds withheld from compensation owed to an independent contractor if all of the following are met:
(i) The withholding of compensation, if applicable, is expressly agreed to by the independent contractor in writing;
(ii) The written agreement for withholding funds or contributing employer funds is clear, unambiguous and prominently displayed in a work contract or separate agreement;
(iii) The withholdings are made only after an independent contractor opts in to the withholdings;
(iv) The independent contractor is authorized to opt out of the agreement at any time;
(v) A hiring party is authorized to opt out of the agreement with at least sixty (60) days of notice to the independent contractor.
27-2-104. Duties of department of workforce services.
(a) The department of workforce services shall:
(i) Enforce all laws enacted by the legislature of Wyoming, relating to labor, wages, hours of labor, and to the health, welfare, life and limb of the workers of this state;
(ii) Repealed By Laws 2001, Ch. 162, § 2.
(iii) Make necessary inspections of industrial establishments and buildings as provided by law;
(iv) Make an inspection of all living accommodations provided for employees wherever employed, where the living accommodations are furnished as a part of the wages; and
(v) To promulgate reasonable rules.
(b) Repealed By Laws 2002, Ch. 100, § 4.
27-2-105. Report to governor; statistics and information required.
(a) The department of workforce services shall collect, classify, have printed and submit to the governor in its annual report the following statistics:
(i) The hours of labor and number of sex engaged in manual labor;
(ii) The aggregate and average daily wages classified by sex and occupation;
(iii) The number and character of accidents;
(iv) The working conditions of all industrial establishments (including manufacturing establishments, hotels, stores, workshops, theaters, halls and other places where labor is employed);
(v) Other information relating to industrial, economic, social, educational, moral and sanitary conditions of the workers; and
(vi) The results of its inspection of industrial establishments.
The director of the department of workforce services may designate employees of the department who shall have power to enter any manufacturing establishment, mill, workshop, office, bakery, laundry, store, hotel, theater, hall, or any public or private works where labor is employed, rooms are rented to the public, or machinery is used, for the purpose of enforcing the provisions of this act.
(a) The director of the department of workforce services may designate employees of the department who shall have the power to administer oaths, to examine witnesses under oath, to compel the attendance of witnesses and the giving of testimony in any part of this state.
(b) Repealed by Laws 1990, ch. 63, § 3; ch. 71, § 2.
(c) Repealed by Laws 1990, ch. 63, § 3; ch. 71, § 2.
(d) Repealed by Laws 1990, ch. 63, § 3; ch. 71, § 2.
(e) Repealed by Laws 1990, ch. 63, § 3; ch. 71, § 2.
(f) Repealed by Laws 1990, ch. 63, § 3; ch. 71, § 2.
(g) Except as otherwise provided by law, final agency decisions of the department of workforce services with regard to chapters 4, 5, 6, 7, 8 and 9 of title 27, shall be issued only after an opportunity for hearing pursuant to the Wyoming Administrative Procedure Act. Any party aggrieved by a final agency decision of the department of workforce services with regards to chapters 4, 5, 6, 7, 8 and 9 of title 27, shall have the right to appeal to district court pursuant to the Wyoming Administrative Procedure Act.
The department of workforce services may sell any publication or other duplicated or printed material, other than the biennial report, which it prepares and which the public may desire to purchase.
(a) Except as otherwise provided, as used in this act:
(i) "Base period" means the first four (4) of the last five (5) completed calendar quarters immediately preceding the first day of an individual's benefit year or any other twelve (12) month period specified by commission regulation. A calendar quarter used in one (1) base period of a valid claim shall not be used in a subsequent base period. If a combined wage claim under W.S. 27-3-608, the base period is as provided under law of the paying state;
(ii) "Benefit" means a payment to an individual for unemployment under this act;
(iii) "Benefit year" means:
(A) The fifty-two (52) consecutive calendar week period beginning the first week of a claim series established by the filing of a valid initial claim for benefits following the termination of any previously established benefit year; or
(B) The fifty-three (53) consecutive calendar week period beginning the first week of a claim series if filing a new valid claim results in the overlapping of any quarter of the base period of a previously filed claim; or
(C) If a combined wage claim under W.S. 27-3-608, the benefit year is as provided under law of the paying state.
(iv) "Calendar quarter" means a period of three (3) consecutive calendar months ending on March 31, June 30, September 30 or December 31;
(v) "Commission" means the unemployment insurance commission of Wyoming within the department of workforce services;
(vi) "Contribution" means payments to the unemployment compensation fund required by this act including payments instead of contributions under W.S. 27-3-509;
(vii) "Employing unit" means any individual or type of organization employing one (1) or more individuals in this state including any partnership, association, trust, estate, corporation, domestic or foreign insurance company or corporation, a receiver, trustee in bankruptcy, trustee or a successor or the legal representative of a deceased person and including any limited liability corporation. Also, any individual or organization not previously subject to this act shall be an employing unit upon acquiring any entity already subject to this act. An individual performing services within this state for any employing unit maintaining two (2) or more separate places of business in the state is employed by a single employing unit. An individual employed to perform for or assist any agent or employee of an employing unit is employed by the employing unit whether hired or paid directly by the employing unit or by the agent or employee if the employing unit had actual or constructive knowledge of the work;
(viii) "Employment office" means a free public employment office or branch operated by any state as part of a state controlled system of public employment offices or by a federal agency administering an unemployment compensation program or a system of free public employment offices;
(ix) "Fund" means the unemployment compensation fund established by this act;
(x) "Hospital" means any institution, building or agency maintaining, furnishing or offering hospitalization of the sick and injured or chronic or convalescent care by individuals employed by the state or any political subdivision;
(xi) "Institution of higher education" means any college or university in this state and any other public or nonprofit educational institution:
(A) Admitting as regular students only high school graduates or the recognized equivalent;
(B) Legally authorized to provide post secondary education in this state; and
(C) Providing an educational program for which a bachelor's or higher degree is awarded or which is accepted as full credit toward this degree, providing a program of postgraduate or postdoctoral study or a training program preparing students for gainful employment in a recognized occupation.
(xii) "Insured work" means employment for employers;
(xiii) "Nonprofit hospital" means any institution performing services specified by paragraph (x) of this subsection and organized and operated under W.S. 35-2-302(a)(vi) and authority of the state department of health;
(xiv) "State" means any of the fifty (50) states of the United States, the District of Columbia, the commonwealth of Puerto Rico or the Virgin Islands;
(xv) "Unemployment" means any week in which an individual performs no services and receives no wages or performs less than full-time work if wages payable for that week are less than his weekly benefit amount and are in accordance with regulations of the commission;
(xvi) "Valid claim" means a claim filed by an individual earning wages for insured work in amounts specified under W.S. 27-3-306(d) for which no misrepresentation is made of unemployment requirements of this act;
(xvii) "United States" used in a geographical sense means the fifty (50) states, the District of Columbia, the commonwealth of Puerto Rico and the Virgin Islands;
(xviii) "Wage" means remuneration payable for services from any source including commissions, bonuses and cash. The reasonable cash value of remuneration other than cash or check shall be prescribed by rule of the commission. To the extent the following are not considered wages under 26 U.S.C. §§ 3301 through 3311, "wage" does not include:
(A) For purposes of W.S. 27-3-503 through 27-3-509, remuneration greater than fifty-five percent (55%) of the statewide average annual wage calculated pursuant to W.S. 27-3-303(a) and rounded to the lowest one hundred dollars ($100.00), which is paid during any calendar year to an individual by each employer or a predecessor within any calendar year including employment under any other state unemployment compensation law unless the amount is subject to a federal tax against which credit may be taken for contributions paid into any state unemployment fund;
(B) Any premium paid by an employing unit under a plan, system or into a fund for insurance or annuities to provide an employee or class of employees retirement, sickness or accident disability, medical and hospitalization expenses for sickness or accident disability or death benefits if the employee cannot receive any part of this payment instead of the death benefit or any part of the premium if the benefit is insured and cannot assign or receive cash instead of the benefit upon withdrawal from or termination of the plan, system, policy or services with the employing unit;
(C) A payment by an employing unit not deducted from an employee's remuneration for the tax imposed under 26 U.S.C. § 3101;
(D) Dismissal payments which the employing unit is not obligated to make;
(E) That portion of tips or gratuities not reportable under 26 U.S.C. § 3306(s);
(F) The value of any meals or lodging furnished by and for the convenience of the employer to the employee if the meals are furnished on the business premises of the employer or in the case of lodging, the employee is required to accept lodging on the business premises of his employer as a condition of his employment;
(G) Remuneration received by an employee as sick pay following a six (6) month continuous period of illness;
(H) Any benefit under a cafeteria plan specified by 26 U.S.C. § 125, excluding cash;
(J) Wages of a deceased worker paid to a beneficiary or estate following the calendar year of the worker's death;
(K) Services received under any dependent care assistance program to the extent excluded from gross income under 26 U.S.C. § 129;
(M) Repealed By Laws 2010, Ch. 66, § 2.
(N) Services or benefits received under any educational assistance program;
(O) Any benefit or other value received under an employee achievement award;
(P) The value of any qualified group legal services plan to the extent payments are excluded from gross income under 26 U.S.C. § 120;
(Q) Costs of group term life insurance;
(R) Repealed By Laws 2010, Ch. 66, § 2.
(S) Any moving expenses;
(T) Employer contributions to any qualified retirement and pension plan or individual retirement account and distributions from qualified retirement and pension plans and annuities under 26 U.S.C. § 403(b);
(U) Benefit payments under any supplemental unemployment compensation plan; and
(W) Any benefits paid under the Wyoming Worker's Compensation Act or any other worker's compensation law of another state.
(xix) "Week" means a period of seven (7) consecutive calendar days beginning Sunday and the commission may by regulation prescribe that a week is within the benefit year which includes the greater part of that week;
(xx) "Department" means the divisions within the department of workforce services established under W.S. 9-2-2002 which contain the principal operating units that administer the unemployment compensation program pursuant to the Social Security Act;
(xxi) "Casual labor" means service not within the normal course of business and for which the remuneration paid is less than fifty dollars ($50.00);
(xxii) "Erroneous payment" means a payment that, but for the failure by the employer or the employer's agent to provide requested information with respect to the claim for unemployment compensation, would not have been made;
(xxiii) "Pattern of failing" means repeated documented failure on the part of the employer or the agent of the employer to respond to a written request from the department for information relating to a claim for benefits, taking into consideration the number of instances of failure in relation to the total volume of requests by the department to the employer or the employer's agent;
(xxiv) "Misconduct connected with work" means an act of an employee which indicates an intentional disregard of the employer's interests or the commonly accepted duties, obligations and responsibilities of an employee. "Misconduct connected with work" does not include:
(A) Ordinary negligence in isolated instances;
(B) Good faith errors in judgment or discretion;
(C) Inefficiency or failure in good performance as the result of inability or incapacity.
(xxv) "This act" means W.S. 27-3-101 through 27-3-811.
27-3-103. "Employer" defined; qualifications; employment services in other states included.
(a) As used in this act, "employer" means any employing unit:
(i) For whom a worker performs service as an employee;
(ii) Acquiring the organization, business, trade or substantially all of the assets of an employer subject to this act at the time of acquisition;
(iii) Electing coverage under this act pursuant to W.S. 27-3-502(d);
(iv) Not otherwise qualifying as an employer under this section and liable for any federal tax on services employed against which credit may be taken for contribution payments into any state unemployment fund;
(v) Not otherwise qualifying as an employer under this section and as a condition for full tax credit against the tax imposed by 26 U.S.C. §§ 3301 through 3311, is required to be an employer under this act;
(vi) Employing services defined as employment under W.S. 27-3-105(a)(i), except as provided by paragraphs (viii) and
(ix) of this subsection;
(vii) Employing services defined as employment under W.S. 27-3-105(a)(ii), except as provided by subsection (b) of this section;
(viii) Employing agricultural labor defined under W.S. 27-3-107;
(ix) Employing domestic service defined under W.S. 27-3-107(g); or
(x) That is an Indian tribe, as defined by section 3306 of the federal Unemployment Tax Act, for which service in employment, as defined by this act, is performed.
(b) Domestic service shall not be considered by the department in determining if an employing unit is an employer under paragraph (a)(i), (vi), (vii) or (viii) of this section. Agricultural labor shall not be considered by the department in determining if an employing unit is an employer under paragraph (a)(i), (vi), (vii) or (ix) of this section.
(c) Employment under this section shall include services performed entirely within another state pursuant to an agreement under W.S. 27-3-608(b) and otherwise qualifying as employment under this act.
(a) As used in this act, "employment" means service:
(i) Performed by an employee defined under 26 U.S.C. § 3306(i) including service in interstate commerce, except 26 U.S.C. § 3121(d)(2) does not apply;
(ii) Subject to any federal tax against which credit may be taken for contribution payments into any state unemployment fund;
(iii) Required to be employment under this act as a condition for full tax credit against the tax imposed by 26 U.S.C. §§ 3301 through 3311; and
(iv) Otherwise specified under W.S. 27-3-104 through 27-3-108.
(b) An individual who performs service for wages is an employee for purposes of this act unless it is shown that the individual:
(i) Is free from control or direction over the details of the performance of services by contract and by fact;
(ii) Repealed by Laws 1991, ch. 153, § 1.
(iii) Repealed by Laws 1995, ch. 121, § 3.
(iv) Repealed by Laws 1995, ch. 121, § 3.
(v) Represents his services to the public as a self-employed individual or an independent contractor; and
(vi) May substitute another individual to perform his services.
(c) As used in this act, "employment" does not include service performed by a person acting as a fiduciary, as that term is defined in W.S. 4-10-103(a)(vii), and receiving reasonable compensation for fiduciary services pursuant to the Uniform Trust Code or the Wyoming Probate Code.
27-3-105. "Employment" defined; employment for state, and other organizations; exceptions.
(a) Employment under this act includes service performed for:
(i) This state, any of its political subdivisions, including service as an appointed official of any political subdivision, or for this state and any other state or its political subdivisions and this service is excluded from employment under 26 U.S.C. §§ 3301 through 3311 solely by 26 U.S.C. § 3306(c)(7);
(ii) A religious, charitable, educational or other organization if excluded from employment under 26 U.S.C. §§ 3301 through 3311 solely by 26 U.S.C. § 3306(c)(8) and the organization employed four (4) or more individuals for part of one (1) day for twenty (20) weeks within the current or preceding calendar year; and
(iii) An Indian tribe, as defined by section 3306 of the federal Unemployment Tax Act, if the service is excluded from employment, as defined by the federal Unemployment Tax Act, only because of the application of section 3306(c)(7) of that act and is not otherwise excluded from employment as defined by this act.
(b) Subsection (a) of this section does not include service performed:
(i) For a church or convention or association of churches;
(ii) For an organization operated primarily for religious purposes and supervised, controlled or principally supported by a church or convention or association of churches;
(iii) As an ordained, commissioned or licensed minister of a church in the exercise of his ministry;
(iv) As a member of a religious order in the exercise of required duties of the order;
(v) As an elected official;
(vi) As a member of a legislative body or the judiciary of the state or any political subdivision;
(vii) As a member of the state national guard or air national guard;
(viii) For a governmental agency as a temporary employee for fire, storm, snow, earthquake, flood or similar emergencies;
(ix) By a major nontenured policymaking or advisory position pursuant to law or by a policymaking or advisory position not ordinarily requiring more than eight (8) hours of service per week;
(x) By an individual receiving rehabilitative services from a facility providing rehabilitation programs for individuals with impaired earning capacities because of age, physical or mental deficiencies or injury or providing remunerative work for individuals not readily absorbed into the labor market because of physical or mental deficiencies;
(xi) By an individual receiving a wage as part of a work experience or workfare program assisted or financed by the federal government or any state or local government, except for those programs employing an individual in on-the-job training for which wages are wholly or partially paid by the employer;
(xii) By an inmate of a state custodial or penal institution; or
(xiii) As an election official or election worker if the amount of remuneration received by the individual during the calendar year for services performed as an election official or election worker is less than one thousand dollars ($1,000.00).
27-3-106. "Employment" defined; employment outside United
States; exceptions; "American employer" defined; localized service specified.
(a) Employment under this act includes service performed outside the United States except in Canada and the Virgin Islands by a United States citizen for an American employer if:
(i) The employer's principal place of business in the United States is located in this state;
(ii) The employer has no place of business in the United States and is a resident of this state, a corporation organized under state law or a partnership or trust and the number of partners or trustees resident of this state is greater than the number of residents of any other state;
(iii) The employer elected coverage under this act; or
(iv) A claim for benefits based on this service is filed under this act and the employer failed to elect coverage in any state.
(b) As used in subsection (a) of this section, "American employer" means a:
(i) Resident of the United States;
(ii) Partnership and two-thirds (2/3) or more of the partners are residents of the United States;
(iii) Trust and the trustees are United States residents; or
(iv) Corporation organized under federal or any state law.
(c) Notwithstanding subsection (a) of this section, employment includes service performed in this state, both in and outside this state or in Canada if the service is:
(i) Localized in this state;
(ii) Not localized in any state, a part of the service is performed in this state and the base of operations is located in this state or if the base of operations is not located in any state, the individual is a resident of this state; or
(iii) Not subject to the law of any state or Canada and the service is directed or controlled from a location in this state.
(d) Service not covered under subsection (c) of this section, performed entirely outside this state and contributions are not required or paid under federal or any state law is employment under this act if the individual performing the service is a resident of this state and the department approves the election of the employing unit for coverage under this act.
(e) Service is localized within a state if it is performed entirely within the state or both within and outside the state if the service performed outside the state is incidental.
"crew leader" defined; when domestic services included; exception.
(a) As used in this section, "agricultural labor" means remunerated service performed:
(i) On a farm for any person involving cultivating the soil or raising or harvesting any agricultural or horticultural commodity including training and managing livestock, bees, poultry, wildlife or furbearing animals;
(ii) For the owner, tenant or other operator of a farm involving the maintenance of the farm and any tools and equipment if the major part of the service is performed on the farm;
(iii) For the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, delivering to storage or market in its unmanufactured state or delivering to a carrier for transportation to market, any agricultural or horticultural commodity if the operator produced more than fifty percent (50%) of the commodity;
(iv) For the operation or maintenance of ditches, canals, reservoirs or waterways used exclusively for supplying and storing water for farming purposes;
(v) In the production or harvesting of an agricultural commodity as defined under 12 U.S.C. § 1141j(g);
(vi) For a group of farm operators or a cooperative organization of which the operators are members for services specified under paragraph (iii) of this subsection if the operators produced more than fifty percent (50%) of the commodity. This paragraph does not apply to service involving commercial canning, commercial freezing or any agricultural or horticultural commodity after delivery to a terminal market for distribution for consumption.
(b) As used in subsection (a) of this section, "farm" means stock, dairy, poultry, fruit and furbearing animal operations, truck farms, ranches, nurseries, ranges, orchards, greenhouses and other operations primarily engaged in the raising of agricultural or horticultural commodities.
(c) Agricultural labor is employment under this act if it is performed for a person who:
(i) Paid cash wages of twenty thousand dollars ($20,000.00) or more during any calendar quarter in the current or preceding calendar year to individuals employed in agricultural labor; or
(ii) Employed ten (10) or more individuals in agricultural labor for a part of one (1) day for twenty (20) calendar weeks within the current or preceding calendar year.
(d) For purposes of this section, any member of a crew furnished by a crew leader to perform service in agricultural labor for any other person is an employee of the crew leader if:
(i) The crew leader is certified under 29 U.S.C. 1801 through 1872; or
(ii) Substantially all crew members operate or maintain tractors, mechanized harvesting or crop dusting equipment or other mechanized equipment provided by the crew leader; and
(iii) The individual is not an employee of any other person under W.S. 27-3-104 through 27-3-108.
(e) As used in this section, "crew leader" means an individual who:
(i) Furnishes individuals to perform agricultural labor for any other person;
(ii) Pays for himself or for others the cash wages of individuals furnished by him for agricultural labor; and
(iii) Has not entered into a written agreement with the other person designating the individuals as employees of that person.
(f) If an individual furnished by a crew leader to perform agricultural labor for another person is not an employee of the crew leader pursuant to subsection (d) of this section, the other person is the employer and shall pay cash wages of the individual equal to the amount paid by the crew leader for the service performed for that person.
(g) Employment under this act includes domestic service performed for a person in a private home, local college club or local chapter of a college fraternity or sorority for which cash wages of one thousand dollars ($1,000.00) or more are paid for any calendar quarter of the current or preceding calendar year.
(h) Service performed during any period in which exemptions from federal unemployment tax liability are provided for under 26 U.S.C. § 3306(c)(1)(B) including any amendments or extensions thereto, by an alien admitted to the United States to perform service in agricultural labor under 8 U.S.C. §§ 1101 through 1503, is exempt from this section.
27-3-108. Services excluded from scope of employment.
(a) Employment under this act does not include service performed:
(i) By an individual for his spouse or child or by a person under twenty-one (21) years of age for his parent or for a partnership consisting only of his parents;
(ii) For the federal government or any federal agency exempt from this act by federal constitution, except service for those agencies otherwise required by law to contribute to any state unemployment compensation fund;
(iii) For an employer or employee representative defined under 45 U.S.C. § 351 et seq. unless an agreement is in effect pursuant to W.S. 27-3-608;
(iv) By an individual under the age of eighteen (18) or as a direct seller or independent contractor in the business of distributing or delivering newspapers or shopping news excluding the delivery or distribution at any point for further delivery or distribution but including directly related services such as soliciting customers and collecting receipts, provided:
(A) All or substantially all of the individual's pay for the service, whether or not paid in cash, directly relates to sales or other output rather than to the number of hours worked; and
(B) The individual performs the service under a written contract with the newspaper or shopping news publisher which specifies that the individual will not be treated as an employee with respect to the services for federal tax purposes.
(v) As real estate activity under W.S. 33-28-102(b)(xlv) by a responsible broker, associate broker or salesperson licensed under the Real Estate License Act, W.S. 33-28-101 through 33-28-401;
(vi) In the employ of a school, college or university by a student enrolled and regularly attending the school, college or university or by the spouse of a student if the spouse is informed at the time employed that employment is provided under a financial assistance program and the employment is not covered by unemployment compensation;
(vii) By an individual enrolled in a full-time program of an educational institution combining academic instruction with work experience if the service is an integral part of the program and is certified by the institution to the employer. This paragraph does not apply to service performed in a program established for an employer or group of employers;
(viii) By a hospital patient employed by the hospital;
(ix) In a barber shop licensed under W.S. 33-7-108 or salon licensed under W.S. 33-12-127 if:
(A) Use of shop facilities by an individual performing services is contingent upon payment of a flat rate of compensation to the shop owner; and
(B) The individual performing services receives no compensation from the shop owner for services performed.
(x) By an individual who is the owner and operator of a motor vehicle which is leased or contracted with driver to a for-hire common or contract carrier. The owner-operator shall not be an employee for purposes of this act if he performs the service pursuant to a contract which provides that the owner-operator shall not be treated as an employee for purposes of the Federal Insurance Contributions Act, the Social Security Act, the Federal Unemployment Tax Act and income tax withholding at source;
(xi) Services performed as casual labor;
(xii) Repealed By Laws 2010, Ch. 66, § 2.
(xiii) By a member of a limited liability company, unless the limited liability company elects coverage in accordance with W.S. 27-3-502(d).
27-3-109. Amendment and repeal; vested rights denied.
The legislature reserves the right to amend, modify or repeal all or any part of the Wyoming Employment Security Law at any time. There is no vested private right of any kind under this act.