[Federal Register Volume 64, Number 220 (Tuesday, November 16, 1999)]
[Proposed Rules]
[Pages 62135-62138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29655]


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RAILROAD RETIREMENT BOARD

20 CFR Part 322

RIN 3220-AB38


Remuneration

AGENCY: Railroad Retirement Board.

ACTION: Proposed rule.

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SUMMARY: The Railroad Retirement Board (Board) proposes to amend its 
regulations defining remuneration and how that term is applied to 
claims for benefits under the Railroad Unemployment Insurance Act 
(RUIA) to reflect changes in that statute and to reflect administrative 
rulings not readily available to the public.

DATES: Comments should be submitted on or before January 18, 2000.

ADDRESSES: Any comments should be addressed to the Secretary to the 
Board, Railroad Retirement Board, 844 North Rush Street, Chicago, 
Illinois 60611.

FOR FURTHER INFORMATION CONTACT: Thomas W. Sadler, Senior Attorney, 
Railroad Retirement Board, (312) 751-4513, FAX (312) 751-7102, TDD 
(312) 751-4701.

SUPPLEMENTARY INFORMATION: As administrator of the RUIA, the Railroad 
Retirement Board pays benefits to

[[Page 62136]]

qualified railroad employees for their days of unemployment or days of 
sickness, as defined in section 1(k) of the Act. Benefits are not 
payable for any day if ``remuneration'', as defined in section 1(j) of 
the RUIA, is payable or accrues to the employee for such day. Part 322 
defines the term ``remuneration'' and explains how the term is applied 
to claims for benefits, but it has not been revised in recent years to 
reflect statutory changes and agency practice and procedure.
    Section 322.1 which currently recites applicable statutory 
provisions, is proposed to be revised to provide a plain language 
introduction that explains the purpose of part 322.
    The general definition of ``remuneration'' set forth in Sec. 322.2 
is proposed to be revised by expanding the definition to cover two 
statutory exceptions to the definition, subsidiary remuneration and 
supplemental unemployment or sickness benefits.
    Section 322.3(b) is proposed to be amended by explaining that 
although ``remuneration'' does not accrue for days that are termed 
``layover'' days, such days are not compensable ``days of 
unemployment''. Also, a new paragraph (d) is proposed to be added to 
explain the rules that would apply to a fully employed employee who has 
additional days off from work by reason of a compressed or flexible 
work schedule.
    Paragraph (a) of Sec. 322.4 is proposed to be revised by indicating 
that the Board will seek information from the employee's base year 
employer on whether remuneration is payable for days claimed.
    Section 322.5 is proposed to be amended to remove a reference to an 
obsolete regulation.
    Paragraph (a) of Sec. 322.6 is proposed to be revised by indicating 
that payments made to an employee with respect to personal injury are 
considered remuneration unless allocated to other ``damages''.
    Section 322.7 is proposed to be revised to conform with the 
practices of the railroad industry that coordination and dismissal 
allowances, separation, and severance payments are remuneration, even 
when paid other than through a collective bargaining agreement, and 
even when paid as the result of an involuntary dismissal or separation.
    Section 322.8 is proposed to be amended to update the amount of 
earnings by a local lodge official that may be regarded as subsidiary 
remuneration. This amendment is necessary because of a statutory change 
that increased to $15 per day the amount of an employee's earnings that 
comes within the definition of subsidiary remuneration.
    Finally, a new Sec. 322.9 is proposed to be added to explain the 
term ``subsidiary remuneration''. Such remuneration does not prevent 
payment of benefits, except as explained in Sec. 322.9.
    The Board, with the concurrence of OMB, has determined that this is 
not a significant regulatory action for purposes of Executive Order No. 
12866. Therefore no regulatory impact analysis is required. The 
information collection requirements contained in this rule have been 
approved by the Office of Management and Budget under control numbers 
3220-0049 and 3220-0022.

List of Subjects in 20 CFR Part 322

    Railroad employees, Railroad unemployment benefits, Reporting and 
recordkeeping requirements.
    For the reasons set out in the preamble, the Railroad Retirement 
Board proposes to amend title 20, chapter II, part 322 of the Code of 
Federal Regulations as follows:

PART 322--REMUNERATION

    1. The authority citation for part 322 is revised to read as 
follows:

    Authority: 45 U.S.C. 362(l).

    2. Section 322.1 is revised to read as follows:


Sec. 322.1  Introduction.

    The Railroad Unemployment Insurance Act provides benefits for a 
qualified employee's days of unemployment or days of sickness, as 
defined in section 1(k) of the Act. Under that section, no day can be a 
day of unemployment or a day of sickness for any employee if 
``remuneration'' is payable or accrues to the employee for such day. In 
computing the amount of benefits payable to an employee for days of 
unemployment or days of sickness in any registration period, or in 
determining whether the employee has satisfied the waiting period 
requirement, the Board will not count any day with respect to which 
remuneration is payable or accrues to the employee. Section 322.2 
defines the term ``remuneration'' and explains what types of payments 
to employees constitute remuneration.
    3. Section 322.2 is revised to read as follows:


Sec. 322.2  General definition of remuneration.

    (a) Remuneration. (1) Remuneration includes pay for services for 
hire, pay for time lost as defined in Sec. 322.6, and other earned 
income payable or accruing with respect to any day. Income is 
``earned'' if it is payable or accrues in consideration of services and 
if such services were in turn rendered in consideration of the income 
payable or accruing.
    (2) Remuneration includes income in the form of a commodity, 
service, or privilege if, before the performance of the service for 
which it is payment, the parties have agreed upon the value of such 
commodity, service, or privilege, and that such part of the amount 
agreed upon to be paid may be paid in the form of such commodity, 
service, or privilege.
    (3) Remuneration for a working day that includes a part of two 
consecutive calendar days is deemed to have been earned on the first of 
such two days.
    (b) Subsidiary remuneration. For the purpose of this part, 
remuneration does not include subsidiary remuneration, as defined in 
Sec. 322.9. Subsidiary remuneration for any day does not prevent such 
day from being a day of unemployment or a day of sickness, except as 
explained in Sec. 322.9.
    (c) Supplemental unemployment or sickness benefits. The term 
remuneration does not include money payments received by an employee 
pursuant to any nongovernmental plan for unemployment or sickness 
insurance, as defined in part 323 of this chapter. Employer payments of 
sick pay to an employee are remuneration, except when payment is made 
pursuant to a nongovernmental plan for sickness insurance.
    4. In Sec. 322.3, revise paragraph (b), and add a new paragraph (d) 
to read as follows:


Sec. 322.3  Determining the days with respect to which remuneration is 
payable or accrues.

* * * * *
    (b) Layover days. Remuneration shall not be regarded as payable or 
accruing to an employee with respect to his or her ``layover'' days 
between regular assignments in train and engine service solely because 
they are termed ``layover'' days. But no such ``layover'' day may be 
considered as a day of unemployment or sickness. See Sec. 332.6 of this 
chapter.
* * * * *
    (d) Equivalent of full-time work. An employee who works fewer than 
five days each week under a compressed work schedule that provides the 
equivalent of full-time employment does not earn remuneration with 
respect to his or her additional rest days resulting from such work 
schedule, but such employee will not be considered to be available for 
work on such rest days. See Sec. 327.10(d) of this chapter.

[[Page 62137]]

    5. In Sec. 322.4, revise paragraph (a) to read as follows:


Sec. 322.4  Consideration of evidence.

    (a) Initial proof. A claimant's certification that he or she did 
not work on any day claimed and did not receive income such as vacation 
pay or pay for time lost for any such day shall constitute sufficient 
evidence for an initial finding that no remuneration is payable or has 
accrued to him or her with respect to such day, unless a base year 
employer reports that he or she worked on days claimed or received 
payments that constitute remuneration as defined in this part, or 
unless there is other conflicting evidence.
* * * * *


Sec. 322.5  [Amended].

    6. Amend Sec. 322.5(c)(2) by removing ``in accordance with 
Sec. 222.3(h) of this chapter''.
    7. In Sec. 322.6, revise paragraph (a) to read as follows:


Sec. 322.6  Pay for time lost.

    (a) Definition. The term ``pay for time lost'' means any payment 
made to an employee with respect to an identifiable period of time 
during which the employee was absent from the active service of the 
person or company making the payment, including absence on account of 
personal injury. The entire amount paid to an employee who was absent 
on account of personal injury is pay for time lost if such amount 
includes pay for time lost, unless at the time of payment the parties, 
by agreement, specify a different amount as the amount of the pay for 
time lost and the period of time covered by such pay. The amount 
allocated to time lost is remuneration for every day in the period of 
time lost. The amount of a payment for personal injury that is 
apportioned to factors other than time lost is, nevertheless, a portion 
of ``damages'' for the purposes of part 341 of this chapter.
* * * * *
    8. Revise Sec. 322.7 to read as follows:


Sec. 322.7  Dismissal, coordination, and separation allowances.

    (a) Coordination or dismissal allowance. Coordination or dismissal 
allowances are payments made to an employee who has been furloughed for 
a specified period of time during which he or she continues in an 
employment relationship and remains subject to call. Such pay is 
remuneration with respect to each day in the month or other period for 
which it is payable. The employer shall be held liable to the Board for 
any benefits paid to the employee and found recoverable under section 
2(f) of the Railroad Unemployment Insurance Act by reason of the 
payment of any such allowances or other pay for the same days for which 
the Board paid benefits.
    (b) Separation allowance. A separation allowance or severance 
payment made to an employee who voluntarily or involuntarily terminates 
his or her employment relationship is not remuneration with respect to 
any day after the employment relationship is severed. An employee who 
is paid a separation allowance, whether in a lump sum or in 
installments, is disqualified by section 4(a-1)(iii) of the Railroad 
Unemployment Insurance Act from receiving unemployment or sickness 
benefits for the period of time approximating the length of time it 
would have taken the employee to earn, at his or her ``straight'' time 
rate of pay, the amount of the separation allowance if he or she had 
continued working in the job from which he or she separated.


Sec. 322.8  [Amended].

    9. In Sec. 322.8(e) remove the phrase ``three dollars'' and add in 
its place ``$15''.
    10. Add new Sec. 322.9 to read as follows:


Sec. 322.9  Subsidiary remuneration.

    (a) Definition. The term ``subsidiary remuneration'' means 
remuneration not in excess of an average of $15 per day for the period 
with respect to which it is payable or accrues, if--
    (1) The work from which the remuneration derives requires 
substantially less than full time as determined by generally prevailing 
standards; and
    (2) The work is susceptible of performance at such times and under 
such circumstances as not to be inconsistent with the holding of normal 
full-time employment in another occupation.
    (b) Exception. If a claimant's remuneration is ``compensation'' as 
defined in part 302 of this chapter, such remuneration is not 
subsidiary unless the claimant had base year compensation from a 
different position or occupation of not less than two and one-half 
times the monthly compensation base for months in the base year in 
which he or she received the remuneration. Compensation in excess of an 
average of $15 per day is remuneration for the days for which it is 
payable or accrues.
    (c) Period for which remuneration is payable or accrues. The 
``period'' of time used in determining whether remuneration averages 
more than $15 per day depends on the terms and conditions of the 
employment and the rate of payment for the work. If the claimant is 
paid a monthly salary, the ``month'' is the period with respect to 
which the pay must average not more than $15 per day. The average is 
the monthly salary divided by 30. If the claimant is paid a weekly 
salary, the amount of the salary is divided by seven. If the claimant 
is paid by the hour or the day, the ``period'' is the day. Where 
payment is made by the hour or the day, the pay is not added up and 
then averaged out over the week or the month. For example, earnings of 
$20 on one day and $10 on another day do not average out to $15 per day 
so as to permit both days to be considered as days of unemployment or 
days of sickness.
    (d) Substantially less than full time. The phrase ``substantially 
less than full time'' means employment of not more than four hours per 
day.
    (e) Compatibility with full time employment. Work is considered to 
be susceptible of performance at such times and under such 
circumstances as not to be inconsistent with the holding of normal 
full-time employment in another position or occupation if it is a form 
of secondary employment that a claimant has done or could do at his or 
her own convenience while performing the duties of his or her railroad 
job.
    (f) Determinations. The Board shall make a determination whether 
remuneration is subsidiary by applying the standards in this section to 
the facts of each case. Earnings that average more than $15 per day are 
not subsidiary remuneration under any circumstances. Also, earnings of 
any amount that are included in a claimant's qualifying base year 
compensation are not subsidiary remuneration. Even if earnings do not 
exceed an average of $15 per day, they may still not be subsidiary 
remuneration if the claimant worked more than four hours per day or if 
the work had to be performed at such times and under such circumstances 
as to be inconsistent with the holding of normal full-time work in his 
or her regular railroad work. If the evidence does not establish that 
the earnings are subsidiary remuneration, the question whether they are 
remuneration for particular days will then be considered.
    (g) Examples. The following examples illustrate this section:
    (1) A claimant receives a salary of $350 per month for serving as 
secretary-treasurer of the local lodge of his union. He performs a 
variety of duties at his own convenience while holding down a full-time 
railroad job in his craft. The average payment per day is not more

[[Page 62138]]

than $15 and is, therefore, subsidiary remuneration.
    (2) A claimant worked three hours per day, at $5 per hour, in the 
family insurance business. He was marked up for work as an extra board 
trainman and worked whenever he was called. When called, he skipped 
work in the family insurance business. His insurance earnings of $15 
per day were subsidiary remuneration.
    (3) While unemployed from her railroad job, a claimant took a job 
as a school bus driver. She worked from 7 a.m. to 9 a.m., and 2:30 p.m. 
to 5:30 p.m. Her regular railroad job was a daytime job from 8 a.m. to 
4:30 p.m. Her pay as a school bus driver was not subsidiary 
remuneration because the job was not compatible with the holding of 
full time work in her regular railroad occupation.

    Dated: November 4, 1999.

    By Authority of the Board.
Beatrice Ezerski,
Secretary to the Board.
[FR Doc. 99-29655 Filed 11-15-99; 8:45 am]
BILLING CODE 7905-01-P