Unemployment Insurance

Web Library Topic - Seasonal Work

Statutes

§ 8‑73-104(1), C.R.S. 2005

The division shall compute wage credits for each individual by crediting him with the wages for insured work paid during each quarter of such individual's base period or twenty-six times the current maximum benefit amount, whichever is the lesser. Any otherwise eligible individual shall be entitled during any benefit year to a total amount of benefits equal to twenty-six times his weekly benefit amount or one-third of his wage credits for insured work paid during his base period, whichever is the lesser; except that benefits based on seasonal wages may be paid only for unemployment during the normal seasonal period of the seasonal industry in which such wage credits were earned and only to seasonal workers who are available for work in such seasonal industry, and the total thereof shall not exceed one-third of such individual's wages paid for insured seasonal work during the corresponding normal seasonal period of his base period. For the purposes of this section, wages shall be counted as “wages for insured work” for benefit purposes with respect to any benefit year only if such benefit year begins subsequent to the date on which the employing unit by whom the wages were paid has satisfied the conditions of section 8-70-113, 8-76-104, or 8-76-107, with respect to becoming an employer.

§ 8‑73‑106, C.R.S. 2005

(1)(a) As used in articles 70 to 82 of this title, “seasonal industry” means an industry or functionally distinct occupation within an industry which, because of climatic conditions or the seasonal nature of the employment, customarily employs workers only during a regularly recurring period or periods of less than twenty-six weeks in a calendar year. “Nonseasonal period or periods” means the time within a calendar year other than the seasonal period or periods. “Seasonal worker” means an individual who has been paid seasonal wages by a seasonal employer for seasonal work only during the designated seasonal period.

(b) During the nonseasonal period or periods, the seasonal employer may employ not more than twenty-five percent of the total number of workers in each functionally distinct occupation that were employed in the previous seasonal period or periods without losing the seasonal designation for that functionally distinct occupation, so long as the seasonal employer does not employ any workers in the designated seasonal occupations during a consecutive forty-five-day period at any time following the seasonal period or periods. A worker who performs services for the same seasonal employer outside the employer's designated seasonal period or periods shall not be considered a seasonal worker for any period, and all wages paid by the seasonal employer to such worker shall be considered nonseasonal wages. If a seasonal worker performs services for the same seasonal employer outside the employer's designated seasonal period or periods thereby resulting in the loss of the worker's seasonal status and if such worker is not thereafter employed by such employer between any two following designated seasonal periods, the worker may thereafter be reemployed by such seasonal employer and regain his status as a seasonal worker.

(2) The director of the division shall prescribe rules and regulations applicable to seasonal industries for determining their normal seasonal period or periods and seasonal workers, as such terms are defined in subsection (1) of this section.

(3) Upon written application filed with the division by an employer, the director of the division shall determine and may thereafter redetermine, from time to time in accordance with the rules and regulations of the division, the normal seasonal period during which workers are ordinarily employed for the purpose of carrying on seasonal operations in the seasonal industry in which such employer is engaged. Such determination shall be made by said director within ninety days after the filing of such application by an employer with the division. Until such determination by the director of the division, no occupation or industry shall be deemed seasonal. Any employing unit affected by such seasonal determination may appeal the determination in accordance with section 8-76-113. For the purpose of determining whether an individual is a seasonal worker and the duration of such individual's benefits, the determination by said director of the normal seasonal period of a seasonal industry shall be applicable to the filing of the quarterly report of wages in the calendar quarter commencing after the date of such determination.

§ 8‑76‑113, C.R.S. 2005

Regulations

Regulation 10.1, 7 Code Colo. Reg. 1101-2

10.1.1 Statutory References: 8-73-104 (1), 8-73-106, and 8-76-113, C.R.S.

10.1.2 Seasonal Periods Considered. As used in section 8-73-106 (1), the words "a regularly recurring period or periods of less than twenty-six weeks in a calendar year" are deemed to include periods in those years during which an employing unit was not subject to the provisions of the Act, or during which a predecessor employer was subject to the Act and records of such predecessor are available to support such periods.

10.1.3 Seasonal Operation. No industry or functionally distinct occupation within an industry shall be deemed a "seasonal industry" as defined in section 8-73-106 (1) unless the employer certifies in the application for seasonal determination required by subsection 10.1.5 that he will fulfill the requirements set forth in subsection 10.1.4 and certifies such other information as may be required by the Division to determine eligibility for designation as a seasonal employer under this Part X.

10.1.4 Seasonal Employer. An employer shall be determined to be a seasonal employer as to a particular industry or functionally distinct occupation within an industry only if:

.1 He customarily employs workers in such industry or functionally distinct occupation only during a regularly recurring period or periods of less than twenty-six weeks in a calendar year, and

.2 He does not employ more than twenty-five percent of the total number of workers in such functionally distinct occupation outside the seasonal period that were employed in such occupation during the previous seasonal period, and

.3 He does not employ any workers in such functionally distinct occupation for a period of forty-five consecutive days following the seasonal period.

For the purposes of this Part X, no employment shall be determined to be a "functionally distinct occupation" unless its assigned duties or activities, as a whole, are identifiably distinct under the usual and customary practice of the industry.

10.1.5 Application for Determination. An employer who wishes designation as a seasonal employer or determination or redetermination of a seasonal period or periods shall make application with the Division upon such forms as may be prescribed by the Division.

10.1.6 Notice of Application. The Division shall require the employer to post a Notice of Application for Seasonal Status on such forms as the Division may require, and shall require the employer to notify the unions representing any of its workers that an application for seasonal status has been filed.

10.1.7 Seasonal Determination. Upon review of the matters set forth in the application and such other information as it may require, the Division shall issue a determination as to the employer's seasonal status, its seasonal period, the functionally distinct occupations determined to be seasonal, and the functionally distinct occupations determined to be nonseasonal.

10.1.8 Seasonal Workers. A worker may not be determined to be a "seasonal worker" if:

.1 The worker performs services for a seasonal employer outside the employer's designated seasonal period or periods; or

.2 The worker performs services for a seasonal employer for twenty-six weeks or more in a calendar year.

10.1.9 Appeal From Determination. Any employer who wishes to protest a determination made under the provisions of this section shall, within fifteen calendar days of the date the seasonal determination is mailed, file a notice of appeal with the Division, and obtain a hearing in accordance with section 8-76-113, C.R.S., and section 11.2 of these regulations.

10.1.10 Notice of Operation Outside Season. Each seasonal employer shall give written notice to the Division within thirty days when the seasonal industry or functionally distinct occupation is operated for twenty-six weeks or more in a calendar year and, for a functionally distinct occupation, when more than twenty-five percent of the total number of workers that were employed in any such functionally distinct occupation during the designated season are employed in such occupation outside the seasonal period or there is not a forty- five consecutive day period outside the seasonal period during which no workers are employed in such functionally distinct occupation.

10.1.11 Annual Report. In addition to the notice required in subsection 10.1.10, every employer who has been designated a seasonal employer must file a written report on prescribed forms on or before the last day of February, which report shall inform the Division of the beginning and ending dates of the previous calendar year's seasonal operation and such other information as may be required by the Division to show compliance with this Part X.

10.1.12 Notification. Each seasonal employer shall notify each seasonal worker in writing at the time of hire of the worker's seasonal status and the beginning and ending dates of the seasonal period for which he is to be employed.

10.1.13 Loss of Seasonal Status. If an employer, subsequent to the date on which he was designated as a seasonal employer, fails to fulfill the requirements of subsection 10.1.4 or fails, without good cause, to comply with the reporting or notification requirements of this Part X during a calendar year, such employer shall lose his seasonal status. Any determination by the Division that an employer has lost his seasonal status shall be made in writing and mailed to the employer and shall be subject to appeal pursuant to subsection 10.1.9.

10.1.14 Reinstatement of Seasonal Status.

.1 An employer who has lost his designation as a seasonal employer, and who wishes reinstatement as such, may make application with the Division for reinstatement in any calendar year subsequent to the year in which he lost his designation as a seasonal employer, provided, however, such employer has met the requirements of subsection 10.1.4 in the calendar year immediately preceding application for reinstatement.

.2 A worker who has performed services for a seasonal employer outside the employer's designated seasonal period or periods, and thereby lost his status as a seasonal worker, shall regain his status as a seasonal worker if he is not thereafter employed by such employer between any two following designated seasonal periods and he is subsequently reemployed by the employer in a seasonal industry or occupation.

Cases

In re Interrogatories by Industrial Commission, 30 Colo.App. 599, 496 P.2d 1064 (1972)

The claimant was a cook for a private school and applied for unemployment benefits during the summer.  The court held that school cooks are not seasonal employees under the statute.

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