CHAPTER 8. EMPLOYMENT DEFINED
IC 22-4-8
Chapter 8. Employment Defined
IC 22-4-8-1
Definition
Sec. 1. (a) "Employment," subject to the other provisions of thissection, means service, including service in interstate commerceperformed for remuneration or under any contract of hire, written ororal, expressed or implied.
(b) Services performed by an individual for remuneration shall bedeemed to be employment subject to this article irrespective ofwhether the common-law relationship of master and servant exists,unless and until all the following conditions are shown to thesatisfaction of the department:
(1) The individual has been and will continue to be free fromcontrol and direction in connection with the performance ofsuch service, both under the individual's contract of service andin fact.
(2) The service is performed outside the usual course of thebusiness for which the service is performed.
(3) The individual:
(A) is customarily engaged in an independently establishedtrade, occupation, profession, or business of the same natureas that involved in the service performed; or
(B) is a sales agent who receives remuneration solely upona commission basis and who is the master of the individual'sown time and effort.
(c) The term also includes the following:
(1) Services performed for remuneration by an officer of acorporation in the officer's official corporate capacity.
(2) Services performed for remuneration for any employing unitby an individual:
(A) as an agent-driver or commission-driver engaged indistributing products, including but not limited to, meat,vegetables, fruit, bakery, beverages, or laundry ordry-cleaning services for the individual's principal; or
(B) as a traveling or city salesman, other than as anagent-driver or commission-driver, engaged upon a full-timebasis in the solicitation on behalf of, and the transmission to,the individual's principal (except for sideline sales activitieson behalf of some other person) of orders from wholesalers,retailers, contractors, or operators of hotels, restaurants, orother similar establishments for merchandise for resale orsupplies for use in their business operations.
(d) For purposes of subsection (c)(2), the term "employment"shall include services described in subsection (c)(2)(A) and (c)(2)(B)only if all the following conditions are met:
(1) The contract of service contemplates that substantially all ofthe services are to be performed personally by such individual.
(2) The individual does not have a substantial investment in
facilities used in connection with the performance of theservices (other than in facilities for transportation).
(3) The services are not in the nature of a single transaction thatis not part of a continuing relationship with the person forwhom the services are performed.
(Formerly: Acts 1947, c.208, s.801; Acts 1971, P.L.355, SEC.13.) Asamended by P.L.108-2006, SEC.6.
IC 22-4-8-2
Services included
Sec. 2. The term "employment" shall include:
(a) An individual's entire service performed within or both withinand without Indiana if the service is localized in Indiana.
(b) An individual's entire service performed within or both withinand without Indiana if the service is not localized in any state, butsome of the service is performed in Indiana and:
(1) the base of operations, or, if there is no base of operations,then the place from which such service is directed or controlledis in Indiana;
(2) the base of operations or place from which such service isdirected or controlled is not in any state in which some part ofthe service is performed but the individual's residence is inIndiana; or
(3) such service is not covered under the unemploymentcompensation law of any other state or Canada, and the placefrom which the service is directed or controlled is in Indiana.
(c) Services not covered under subsections (a) and (b) andperformed entirely without Indiana, with respect to no part of whichcontributions are required and paid under an unemploymentcompensation law of any other state or of the United States, shall bedeemed to be employment subject to this article if the departmentapproves the election of the individual performing such services andthe employing unit for which such services are performed, that theentire services of such individual shall be deemed to be employmentsubject to this article.
(d) Services covered by an election duly approved by thedepartment, in accordance with an agreement pursuant toIC 22-4-22-1 through IC 22-4-22-5, shall be deemed to beemployment during the effective period of such election.
(e) Service shall be deemed to be localized within a state if:
(1) the service is performed entirely within such state; or
(2) the service is performed both within and without such state,but the service performed without such state is incidental to theindividual's service within the state, such as is temporary ortransitory in nature or consists of isolated transactions.
(f) Periods of vacation with pay or leave with pay, other thanmilitary leave granted or given to an individual by an employer.
(g) Notwithstanding any other provisions of this article, the termemployment shall also include all services performed by an officeror member of the crew of an American vessel or American aircraft,
on or in connection with such vessel or such aircraft, provided thatthe operating office, from which the operations of such vesseloperating on navigable waters within or the operations of suchaircraft within, or the operation of such vessel or aircraft within andwithout the United States are ordinarily and regularly supervised,managed, directed, and controlled, is within this state.
(h) Services performed for an employer which is subject tocontribution solely by reason of liability for any federal tax againstwhich credit may be taken for contributions paid into a stateunemployment compensation fund.
(i) The following:
(1) Service performed after December 31, 1971, by anindividual in the employ of this state or any of itsinstrumentalities (or in the employ of this state and one (1) ormore other states or their instrumentalities) for a hospital oreligible postsecondary educational institution located inIndiana.
(2) Service performed after December 31, 1977, by anindividual in the employ of this state or a political subdivisionof the state or any instrumentality of the state or a politicalsubdivision, or any instrumentality which is wholly owned bythe state and one (1) or more other states or politicalsubdivisions, if the service is excluded from "employment" asdefined in Section 3306(c)(7) of the Federal UnemploymentTax Act (26 U.S.C. 3306(c)(7)). However, service performedafter December 31, 1977, as the following is excluded:
(A) An elected official.
(B) A member of a legislative body or of the judiciary of astate or political subdivision.
(C) A member of the state national guard or air nationalguard.
(D) An employee serving on a temporary basis in the case offire, snow, storm, earthquake, flood, or similar emergency.
(E) An individual in a position which, under the laws of thestate, is designated as:
(i) a major nontenured policymaking or advisory position;or
(ii) a policymaking or advisory position the performanceof the duties of which ordinarily does not require morethan eight (8) hours per week.
(3) Service performed after March 31, 1981, by an individualwhose service is part of an unemployment work relief or worktraining program assisted or financed in whole by any federalagency or an agency of this state or a political subdivision ofthis state, by an individual receiving such work relief or worktraining is excluded.
(j) Service performed after December 31, 1971, by an individualin the employ of a religious, charitable, educational, or otherorganization, but only if the following conditions are met:
(1) The service is excluded from "employment" as defined in
the Federal Unemployment Tax Act solely by reason of Section3306(c)(8) of that act (26 U.S.C. 3306(c)(8)).
(2) The organization had four (4) or more individuals inemployment for some portion of a day in each of twenty (20)different weeks, whether or not such weeks were consecutive,within either the current or preceding calendar year, regardlessof whether they were employed at the same moment of time.
(3) For the purposes of subdivisions (1) and (2), the term"employment" does not apply to service performed as follows:
(A) In the employ of:
(i) a church or convention or association of churches; or
(ii) an organization which is operated primarily forreligious purposes and which is operated, supervised,controlled, or principally supported by a church orconvention or association of churches.
(B) By a duly ordained, commissioned, or licensed ministerof a church in the exercise of his ministry or by a member ofa religious order in the exercise of duties required by suchorder.
(C) Before January 1, 1978, in the employ of a school whichis not an eligible postsecondary educational institution.
(D) In a facility conducted for the purpose of carrying out aprogram of rehabilitation for individuals whose earningcapacity is impaired by age or physical or mental deficiencyor injury or providing remunerative work for individualswho because of their impaired physical or mental capacitycannot be readily absorbed in the competitive labor marketby an individual receiving such rehabilitation orremunerative work.
(E) As part of an unemployment work relief or work trainingprogram assisted or financed in whole or in part by anyfederal agency or an agency of a state or politicalsubdivision thereof, by an individual receiving such workrelief or work training.
(k) The service of an individual who is a citizen of the UnitedStates, performed outside the United States (except in Canada), afterDecember 31, 1971, in the employ of an American employer (otherthan service which is deemed "employment" under the provisions ofsubsection (a), (b), or (e) or the parallel provisions of another state'slaw), if the following apply:
(1) The employer's principal place of business in the UnitedStates is located in this state.
(2) The employer has no place of business in the United States,but the employer is:
(A) an individual who is a resident of this state;
(B) a corporation which is organized under the laws of thisstate;
(C) a partnership, limited liability partnership, or a trust andthe number of the partners or trustees who are residents ofthis state is greater than the number who are residents of any
one (1) other state; or
(D) an association, a joint venture, an estate, a limitedliability company, a joint stock company, or an insurancecompany (referred to as an "entity" in this clause), andeither:
(i) the entity is organized under the laws of this state; or
(ii) the number of owners, members, or beneficiaries whoare residents of this state is greater than the number whoare residents of any one (1) other state.
(3) None of the criteria of subdivisions (1) and (2) is met butthe employer has elected coverage in this state or, the employerhaving failed to elect coverage in any state, the individual hasfiled a claim for benefits, based on such service, under the lawof this state.
(4) An "American employer," for purposes of this subsection,means:
(A) an individual who is a resident of the United States;
(B) a partnership or limited liability partnership, iftwo-thirds (2/3) or more of the partners are residents of theUnited States;
(C) a trust, if all of the trustees are residents of the UnitedStates; or
(D) a corporation, an association, a joint venture, an estate,a limited liability company, a joint stock company, or aninsurance company organized or established under the lawsof the United States or of any state.
(l) The term "employment" also includes the following:
(1) Service performed after December 31, 1977, by anindividual in agricultural labor (as defined in section 3(c) of thischapter) when the service is performed for an employing unitwhich:
(A) during any calendar quarter in either the current orpreceding calendar year paid cash remuneration of twentythousand dollars ($20,000) or more to individuals employedin agricultural labor; or
(B) for some portion of a day in each of twenty (20) differentcalendar weeks, whether or not the weeks were consecutive,in either the current or the preceding calendar year,employed in agricultural labor ten (10) or more individuals,regardless of whether they were employed at the same time.
(2) For the purposes of this subsection, any individual who is amember of a crew furnished by a crew leader to perform servicein agricultural labor for any other person shall be treated as anemployee of the crew leader:
(A) if the crew leader holds a valid certificate of registrationunder the Farm Labor Contractor Registration Act of 1963,or substantially all the members of the crew operate ormaintain tractors, mechanized harvesting or crop dustingequipment, or any other mechanized equipment, which isprovided by the crew leader; and (B) if the individual is not an employee of another personwithin the meaning of section 1 of this chapter.
(3) For the purposes of subdivision (1), in the case of anindividual who is furnished by a crew leader to perform servicein agricultural labor for any other person and who is not treatedas an employee of the crew leader under subdivision (2):
(A) the other person and not the crew leader shall be treatedas the employer of the individual; and
(B) the other person shall be treated as having paid cashremuneration to the individual in an amount equal to theamount of cash remuneration paid to the individual by thecrew leader (either on the individual's own behalf or onbehalf of the other person) for the service in agriculturallabor performed for the other person.
(4) For the purposes of this subsection, the term "crew leader"means an individual who:
(A) furnishes individuals to perform service in agriculturallabor for any other person;
(B) pays (either on the individual's own behalf or on behalfof the other person) the agricultural laborers furnished by theindividual for the service in agricultural labor performed bythem; and
(C) has not entered into a written agreement with the otherperson under which the individual is designated as anemployee of the other person.
(m) The term "employment" includes domestic service afterDecember 31, 1977, in a private home, local college club, or localchapter of a college fraternity or sorority performed for a person whopaid cash remuneration of one thousand dollars ($1,000) or moreafter December 31, 1977, in the current calendar year or thepreceding calendar year to individuals employed in the domesticservice in any calendar quarter.
(Formerly: Acts 1947, c.208, s.802; Acts 1971, P.L.355, SEC.14.) Asamended by Acts 1977, P.L.262, SEC.13; Acts 1978, P.L.122, SEC.1;Acts 1979, P.L.229, SEC.1; Acts 1981, P.L.209, SEC.5; P.L.18-1987,SEC.27; P.L.2-2007, SEC.291; P.L.3-2008, SEC.158; P.L.175-2009,SEC.7.
IC 22-4-8-3
Services not included; determination of status
Sec. 3. "Employment" shall not include the following:
(1) Except as provided in section 2(i) of this chapter, serviceperformed prior to January 1, 1978, in the employ of this state,any other state, any town or city, or political subdivision, or anyinstrumentality of any of them, other than service performed inthe employ of a municipally owned public utility as defined inthis article; or service performed in the employ of the UnitedStates of America, or an instrumentality of the United Statesimmune under the Constitution of the United States from thecontributions imposed by this article, except that to the extent
that the Congress of the United States shall permit states torequire any instrumentalities of the United States to makepayments into an unemployment fund under a stateunemployment compensation statute, all of the provisions ofthis article shall be applicable to such instrumentalities, in thesame manner, to the same extent, and on the same terms as toall other employers, employing units, individuals, and services.However, if this state shall not be certified for any year by theSecretary of Labor under Section 3304 of the Internal RevenueCode the payments required of such instrumentalities withrespect to such year shall be refunded by the commissionerfrom the fund in the same manner and within the same periodas is provided in IC 22-4-32-19 with respect to contributionerroneously paid or wrongfully assessed.
(2) Service with respect to which unemployment compensationis payable under an unemployment compensation systemestablished by an Act of Congress; however, the department isauthorized to enter into agreements with the proper agenciesunder such Act of Congress which agreements shall becomeeffective ten (10) days after publication thereof, in accordancewith rules adopted by the department under IC 4-22-2, toprovide reciprocal treatment to individuals who have, afteracquiring potential rights to benefits under this article, acquiredrights to unemployment compensation under such Act ofCongress, or who have, after having acquired potential rights tounemployment compensation under such Act of Congress,acquired rights to benefits under this article.
(3) "Agricultural labor" as provided in section 2(l)(1) of thischapter shall include only services performed:
(A) on a farm, in the employ of any person, in connectionwith cultivating the soil or in connection with raising orharvesting any agricultural or horticultural commodity,including the raising, shearing, feeding, caring for, training,and management of livestock, bees, poultry, and furbearinganimals and wildlife;
(B) in the employ of the owner or tenant or other operator ofa farm, in connection with the operation, management,conservation, improvement, or maintenance of such farmand its tools and equipment, or in salvaging timber orclearing land of brush and other debris left by a hurricane, ifthe major part of such service is performed on a farm;
(C) in connection with the production or harvesting of anycommodity defined as an agricultural commodity in Section15(g) of the Agricultural Marketing Act (12 U.S.C.1141j(g)) as amended, or in connection with the operation ormaintenance of ditches, canals, reservoirs, or waterways, notowned or operated for profit, used exclusively for supplyingand storing water for farming purposes;
(D) in the employ of:
(i) 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 fortransportation to market, in its unmanufactured state, anyagricultural or horticultural commodity; but only if suchoperator produced more than one-half (1/2) of thecommodity with respect to which such service isperformed; or
(ii) a group of operators of farms (or a cooperativeorganization of which such operators are members) in theperformance of service described in item (i), but only ifsuch operators produce more than one-half (1/2) of thecommodity with respect to which such service isperformed;
except the provisions of items (i) and (ii) shall not bedeemed to be applicable with respect to service performed inconnection with commercial canning or commercial freezingor in connection with any agricultural or horticulturalcommodity after its delivery to a terminal market fordistribution for consumption; or
(E) on a farm operated for profit if such service is not in thecourse of the employer's trade or business or is domesticservice in a private home of the employer.
(4) As used in subdivision (3), "farm" includes stock, dairy,poultry, fruit, furbearing animals, and truck farms, nurseries,orchards, greenhouses, or other similar structures used primarilyfor the raising of agricultural or horticultural commodities.
(5) Domestic service in a private home, local college club, orlocal chapter of a college fraternity or sorority, except asprovided in section 2(m) of this chapter.
(6) Service performed on or in connection with a vessel oraircraft not an American vessel or American aircraft, if theemployee is employed on and in connection with such vessel oraircraft when outside the United States.
(7) Service performed by an individual in the employ of childor spouse, and service performed by a child under the age oftwenty-one (21) in the employ of a parent.
(8) Service not in the course of the employing unit's trade orbusiness performed in any calendar quarter by an individual,unless the cash remuneration paid for such service is fiftydollars ($50) or more and such service is performed by anindividual who is regularly employed by such employing unitto perform such service. For the purposes of this subdivision, anindividual shall be deemed to be regularly employed to performservice not in the course of an employing unit's trade orbusiness during a calendar quarter only if:
(A) on each of some of twenty-four (24) days during suchquarter such individual performs such service for someportion of the day; or
(B) such individual was regularly employed (as determinedunder clause (A)) by such employing unit in the performance
of such service during the preceding calendar quarter.
(9) Service performed by an individual in any calendar quarterin the employ of any organization exempt from income taxunder Section 501 of the Internal Revenue Code (except thoseservices included in sections 2(i) and 2(j) of this chapter if theremuneration for such service is less than fifty dollars ($50)).
(10) Service performed in the employ of a hospital, if suchservice is performed by a patient of such hospital.
(11) Service performed in the employ of a school or eligiblepostsecondary educational institution if the service isperformed:
(A) by a student who is enrolled and is regularly attendingclasses at the school or eligible postsecondary educationalinstitution; or
(B) by the spouse of such a student, if such spouse isadvised, at the time such spouse commences to perform suchservice, that:
(i) the employment of such spouse to perform such serviceis provided under a program to provide financialassistance to such student by the school or eligiblepostsecondary educational institution; and
(ii) such employment will not be covered by any programof unemployment insurance.
(12) Service performed by an individual who is enrolled at anonprofit or public educational institution which normallymaintains a regular faculty and curriculum and normally has aregularly organized body of students in attendance at the placewhere its educational activities are carried on as a student in afull-time program, taken for credit at such institution, whichcombines academic instruction with work experience, if suchservice is an integral part of such program, and such institutionhas so certified to the employer, except that this subdivisionshall not apply to service performed in a program establishedfor or on behalf of an employer or group of employers.
(13) Service performed in the employ of a government foreignto the United States of America, including service as a consularor other officer or employee or a nondiplomatic representative.
(14) Service performed in the employ of an instrumentalitywholly owned by a government foreign to that of the UnitedStates of America, if the service is of a character similar to thatperformed in foreign countries by employees of the UnitedStates of America or of an instrumentality thereof, and if theboard finds that the Secretary of State of the United States hascertified to the Secretary of the Treasury of the United Statesthat the government, foreign to the United States, with respectto whose instrumentality exemption is claimed, grants anequivalent exemption with respect to similar service performedin such country by employees of the United States and ofinstrumentalities thereof.
(15) Service performed as a student nurse in the employ of a
hospital or nurses' training school by an individual who isenrolled and is regularly attending classes in a nurses' trainingschool chartered or approved pursuant to state law; and serviceperformed as an intern in the employ of a hospital by anindividual who has completed a four (4) year course in amedical school chartered or approved pursuant to state law.
(16) Service performed by an individual as an insuranceproducer or as an insurance solicitor, if all such serviceperformed by such individual is performed for remunerationsolely by way of commission.
(17) Service performed by an individual:
(A) under the age of eighteen (18) in the delivery ordistribution of newspapers or shopping news, not includingdelivery or distribution to any point for subsequent deliveryor distribution; or
(B) in, and at the time of, the sale of newspapers ormagazines to ultimate consumers, under an arrangementunder which the newspapers or magazines are to be sold bythe individual at a fixed price, the individual's compensationbeing based on the retention of the excess of such price overthe amount at which the newspapers or magazines arecharged to the individual, whether or not the individual isguaranteed a minimum amount of compensation for suchservice, or is entitled to be credited with the unsoldnewspapers or magazines turned back.
(18) Service performed in the employ of an internationalorganization.
(19) Except as provided in IC 22-4-7-1, services covered by anelection duly approved by the agency charged with theadministration of any other state or federal unemploymentcompensation law in accordance with an arrangement pursuantto IC 22-4-22-1 through IC 22-4-22-5, during the effectiveperiod of such election.
(20) If the service performed during one-half (1/2) or more ofany pay period by an individual for an employing unitconstitutes employment, all the services of such individual forsuch period shall be deemed to be employment; but if theservices performed during more than one-half (1/2) of any payperiod by such an individual do not constitute employment, thennone of the services of such individual for such period shall bedeemed to be employment. As used in this subsection, "payperiod" means a period of not more than thirty-one (31)consecutive days for which a payment of remuneration isordinarily made to the individual by the employing unit. Thissubsection shall not be applicable with respect to servicesperformed in a pay period by any such individual where anysuch service is excepted by subdivision (2).
(21) Service performed by an inmate of a custodial or penalinstitution.
(22) Service performed as a precinct election officer (as defined
in IC 3-5-2-40.1).
(Formerly: Acts 1947, c.208, s.803; Acts 1951, c.295, s.4; Acts 1957,c.299, s.13; Acts 1959, c.305, s.1; Acts 1967, c.310, s.11; Acts 1971,P.L.355, SEC.15.) As amended by Acts 1977, P.L.262, SEC.14;P.L.227-1983, SEC.3; P.L.2-1987, SEC.30; P.L.18-1987, SEC.28;P.L.3-1995, SEC.147; P.L.21-1995, SEC.67; P.L.2-1996, SEC.267;P.L.1-2003, SEC.70; P.L.178-2003, SEC.10; P.L.108-2006, SEC.7;P.L.2-2007, SEC.292.
IC 22-4-8-3.5
Services not included; owner-operator of motor vehicle
Sec. 3.5. As used in this article, "employment" does not includean owner-operator that provides a motor vehicle and the services ofa driver to a motor carrier under a written contract that is subject toIC 8-2.1-24-22, 45 IAC 16-1-13, or 49 CFR 376.
As added by P.L.98-2005, SEC.2.
IC 22-4-8-4
"Seasonal employment"; "seasonal worker"
Sec. 4. (a) As used in this article, "seasonal employment" meansservices performed for a seasonal employer during the seasonalperiod in the employer's seasonal operations, after the effective dateof a seasonal determination with respect to the seasonal employer.
(b) As used in this article, "seasonal worker" means an individualwho:
(1) has been employed by a seasonal employer in seasonalemployment during a regularly recurring period or periods ofless than twenty-six (26) weeks in a calendar year for allseasonal periods, as determined by the department;
(2) has been hired for a specific temporary seasonal period asdetermined by the department; and
(3) has been notified in writing at the time hired, or immediatelyfollowing the seasonal determination by the department,whichever is later:
(A) that the individual is performing services in seasonalemployment for a seasonal employer; and
(B) that the individual's employment is limited to thebeginning and ending dates of the employer's seasonalperiod as determined by the department.
As added by P.L.228-1983, SEC.2. Amended by P.L.18-1987,SEC.29.