Tennessee § 50-7-306 - Seasonal employment.

§ 50-7-306. Seasonal employment.

As used in this section: “Active seasonal period” means the regularly recurring period of twenty-six (26) consecutive weeks or less within a calendar year as approved by the department in which a seasonal employer customarily carries on all work operations; “Inactive seasonal period” means the period within a calendar year in which there is a customary cessation of all work operations and is other than the active seasonal period; “Non-seasonal wages” mean wages earned in employment other than seasonal employment; “Reasonable assurance” means a written notice that the employee will be employed by the seasonal employer in the same or similar capacity during the following active seasonal period; “Seasonal employer” means an employer who customarily employs workers only during a regularly recurring period of twenty-six (26) consecutive weeks or less within a calendar year and has been determined to be a seasonal employer by the department; “Seasonal employment” means employment within the active seasonal period, as approved by the department; “Seasonal wages” means remuneration earned during seasonal employment by a seasonal worker who has received actual written notice prior to performing any seasonal work in the active seasonal period that the wages are potentially excludable from the base period as defined in § 50-7-218; and “Seasonal worker” means an individual who has earned seasonal wages from a seasonal employer during the approved active seasonal period. Determination of Seasonal Employer Status. Effective July 1, 2020: No employer shall be considered a seasonal employer until the department issues a written determination that an applicant is a seasonal employer; An application for a seasonal employer determination must be made on forms prescribed by the department and must be received by the department between September 1 and October 31 each year; At the time of application, the employer shall have an experience rating pursuant to § 50-7-403(b)(1)(A); shall have no unpaid liability, including lien fees, penalties, or interest charges; and shall have not been delinquent in submitting any premium and wage reports or payment required under this chapter in the four (4) quarters preceding the application; Upon application for seasonal employer status, the department shall determine whether the employer is seasonal and, if seasonal, the employer's active seasonal period. The determination will be effective January 1 through December 31 of the following calendar year and shall not have any retroactive effect; The determination shall include the beginning and ending dates of the seasonal employer's active seasonal period. If the beginning or ending date for the active seasonal period falls within any calendar week, the entire week is counted as within the active seasonal period; Any seasonal employer determination rendered with respect to an employer pursuant to this section shall be final and conclusive upon the employer for all purposes and in all proceedings whatsoever unless the employer has timely filed with the division of employment security a written application for review and redetermination in accordance with § 50-7-404(h); The department may, on its own motion, reconsider the active seasonal period and seasonal employer status of any seasonal employer; The department shall terminate the employer's seasonal employer status upon receipt of a written request from the seasonal employer requesting termination of the seasonal employer status; and If any seasonal worker performs services for the same seasonal employer outside the employer's designated active seasonal period and in excess of twenty-six (26) consecutive weeks in a calendar year, the seasonal employer is disqualified as a seasonal employer and all wages paid by the seasonal employer to all seasonal workers shall be considered non-seasonal wages. Notification to Seasonal Workers. Effective July 1, 2020: A seasonal employer shall conspicuously display the department's seasonal determination on the employer's premises; Each seasonal worker or prospective seasonal worker shall receive written notice from the seasonal employer prior to the beginning of each active seasonal period that the seasonal wages are potentially excludable from the base period as defined in § 50-7-218. The notice shall: Be provided prior to the performance of any service for the seasonal employer; Advise the seasonal worker of the beginning and ending dates of the active seasonal period; and Contain the department's contact information for any inquiries by the seasonal workers; and The employer shall provide the seasonal worker with written notice of any subsequent change in the employee's status as a seasonal worker. Payment of Benefits to Seasonal Workers. Effective July 1, 2020: Wages from seasonal employment shall not be included in the base period as defined in § 50-7-218 for any week of unemployment commencing during the inactive seasonal period between two (2) successive active seasonal periods, if the claimant performs the services in an active seasonal period and a reasonable assurance is provided that the claimant will perform the service for the seasonal employer during the following active seasonal period; If benefits are denied to a seasonal worker for any week solely as a result of subdivision (d)(1) and the seasonal worker is not offered an opportunity to perform in the next active seasonal period for which there was a reasonable assurance of employment, the seasonal worker is entitled to retroactive payment of benefits for each week that the seasonal worker previously filed a timely claim for benefits; and Wages from seasonal employment shall be included in the base period as defined in § 50-7-218 for any week of unemployment commencing during the employer's active seasonal period. Acts 2012, ch. 1107, § 1; 2016, ch. 751, § 2. Amendments. The 2016 amendment rewrote this section, which read: “(a) As used in this section:“(1) ‘Active period or periods of a seasonal pursuit’ means the longest regularly recurring period or periods of a calendar year within which production operations of a seasonal employer are customarily carried on;“(2) ‘Inactive period or periods of a seasonal pursuit’ means that part of a calendar year which is not included in the active period or periods of a seasonal employer;“(3) ‘Interested party’ means any individual affected by a seasonal determination;“(4) ‘Production operations’ means all the activities of employment which are primarily related to the production of the employer's characteristic goods or services;“(5) ‘Reasonable assurance’ means a written, oral or implied agreement that the employee will perform services in the same or similar capacity during the ensuing active period of a seasonal pursuit;“(6) ‘Seasonal employment’ means services performed by an individual in the employ of a seasonal employer and only during such seasonal employer's active period or periods of a seasonal pursuit. No services performed by an individual in the employ of a seasonal employer may be considered seasonal employment if the individual performs any services in the employ of such employer during the inactive period of seasonal pursuit;“(7) ‘Seasonal wages’ means the wages earned by a seasonal worker as an employee of a seasonal employer within the active period or periods of such employer. The department may prescribe by rule the manner in which seasonal wages shall be reported; and“(8) ‘Seasonal worker’ means an individual in the employ of a seasonal employer only during the employer's active period of seasonal pursuit. An individual may not be considered a seasonal worker nor should wages be reported as seasonal wages if the individual performs any services in the employ of such employer within the inactive period of a seasonal pursuit.“(b) Effective with claims filed on or after July 1, 2016:“(1) A seasonal employer is one which, because of seasonal conditions making it impracticable or impossible to do otherwise, customarily carries on production operations only within a regularly recurring active period or periods of less than an aggregate of thirty-six (36) weeks in a calendar year. No employer shall be considered a seasonal employer until the department makes a determination that the employer is seasonal. However, any successor to a seasonal employer shall be deemed a seasonal employer unless the successor requests cancellation of the seasonal employer status within one hundred twenty (120) days after the acquisition. This subdivision (b)(1) shall not be applicable to pending cases or retroactive in effect;“(2) Upon application by an employer for seasonal employer status, the department shall determine or redetermine whether the employer is seasonal and, if seasonal, the employer's active period. The department is authorized to redetermine a seasonal employer's active period. An application for a seasonal determination must be made on forms prescribed by the department and must be made at least thirty (30) days prior to the beginning date of the period of production operations for which a determination is requested;“(3)(A) Whenever the department has determined or redetermined an employer to be seasonal, the employer shall be notified immediately. The notice must contain the beginning and ending dates of the employer's active period or periods;“(B) Any employer determined or redetermined to be a seasonal employer shall display notices of its seasonal determination conspicuously on the employer's premises in a sufficient number of places to be available for inspection by the employer's workers. Any employer determined or redetermined to be a seasonal employer shall also notify the employer's workers in writing upon the initial seasonal determination and individually to any worker hired by the seasonal employer after such initial notification. Such notices shall contain the department's contact information for any inquiries by the workers. The notices may be furnished by the department;“(4) A determination or redetermination by the department that an employer is a seasonal employer shall become effective unless an interested party files an application for review within ten (10) days of the beginning date of the first period of production operations to which the determination or redetermination applies. An application for review shall be an application for a determination of status;“(5)(A) Benefits based on seasonal employment shall be payable to a seasonal worker in the employ of a seasonal employer for weeks of unemployment that occur during such employer's active period of seasonal pursuit;“(B) Benefits shall not be paid based on services performed in seasonal employment for any week of unemployment beginning after July 1, 2016, that begins during the period between two (2) successive normal active periods of seasonal pursuit to any seasonal worker if that seasonal worker performs the service in the first of the normal active periods and if there is a reasonable assurance that the seasonal worker will perform the service for a seasonal employer in the second of the active periods. If benefits are denied to a seasonal worker for any week solely as a result of this subsection (b) and the seasonal worker is not offered an opportunity to perform in the second normal active period for which reasonable assurance of employment had been given, the seasonal worker is entitled to a retroactive payment of benefits under this subsection (b) for each week that the seasonal worker previously filed a timely claim for benefits;“(6) The benefits payable to any otherwise eligible seasonal worker shall be calculated in accordance with this section for any benefit year which is established on or after the beginning date of a determination by the department that an employer is a seasonal employer if such seasonal worker was employed by the seasonal employer during the base period applicable to such benefit year, as if such determination had been effective in such base period;“(7) Nothing in this section shall be construed to limit the right of any individual whose claim for benefits is determined in accordance with this section to appeal from such determination as provided in § 50-7-304 .“(c) It is the intent of the general assembly that the department will begin preparation for implementation of this section by including in any request for proposal for new computer systems the ability to begin implementing this section by July 1, 2016.” Effective Dates. Acts 2016, ch. 751, § 6. July 1, 2016.