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 this
section, means service, including service in interstate commerce
performed for remuneration or under any contract of hire, written or
oral, expressed or implied.
(b) Services performed by an individual for remuneration shall be
deemed to be employment subject to this article irrespective of
whether the common-law relationship of master and servant exists,
unless and until all the following conditions are shown to the
satisfaction of the department:
(1) The individual has been and will continue to be free from
control and direction in connection with the performance of
such service, both under the individual's contract of service and
in fact.
(2) The service is performed outside the usual course of the
business for which the service is performed.
(3) The individual:
(A) is customarily engaged in an independently established
trade, occupation, profession, or business of the same nature
as that involved in the service performed; or
(B) is a sales agent who receives remuneration solely upon
a commission basis and who is the master of the individual's
own time and effort.
(c) The term also includes the following:
(1) Services performed for remuneration by an officer of a
corporation in the officer's official corporate capacity.
(2) Services performed for remuneration for any employing unit
by an individual:
(A) as an agent-driver or commission-driver engaged in
distributing products, including but not limited to, meat,
vegetables, fruit, bakery, beverages, or laundry or
dry-cleaning services for the individual's principal; or
(B) as a traveling or city salesman, other than as an
agent-driver or commission-driver, engaged upon a full-time
basis in the solicitation on behalf of, and the transmission to,
the individual's principal (except for sideline sales activities
on behalf of some other person) of orders from wholesalers,
retailers, contractors, or operators of hotels, restaurants, or
other similar establishments for merchandise for resale or
supplies 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 of
the 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 the
services (other than in facilities for transportation).
(3) The services are not in the nature of a single transaction that
is not part of a continuing relationship with the person for
whom the services are performed.
(Formerly: Acts 1947, c.208, s.801; Acts 1971, P.L.355, SEC.13.) As
amended 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 within
and without Indiana if the service is localized in Indiana.
(b) An individual's entire service performed within or both within
and without Indiana if the service is not localized in any state, but
some 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 controlled
is in Indiana;
(2) the base of operations or place from which such service is
directed or controlled is not in any state in which some part of
the service is performed but the individual's residence is in
Indiana; or
(3) such service is not covered under the unemployment
compensation law of any other state or Canada, and the place
from which the service is directed or controlled is in Indiana.
(c) Services not covered under subsections (a) and (b) and
performed entirely without Indiana, with respect to no part of which
contributions are required and paid under an unemployment
compensation law of any other state or of the United States, shall be
deemed to be employment subject to this article if the department
approves the election of the individual performing such services and
the employing unit for which such services are performed, that the
entire services of such individual shall be deemed to be employment
subject to this article.
(d) Services covered by an election duly approved by the
department, in accordance with an agreement pursuant to
IC 22-4-22-1 through IC 22-4-22-5, shall be deemed to be
employment 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 the
individual's service within the state, such as is temporary or
transitory in nature or consists of isolated transactions.
(f) Periods of vacation with pay or leave with pay, other than
military leave granted or given to an individual by an employer.
(g) Notwithstanding any other provisions of this article, the term
employment shall also include all services performed by an officer
or member of the crew of an American vessel or American aircraft,
on or in connection with such vessel or such aircraft, provided that
the operating office, from which the operations of such vessel
operating on navigable waters within or the operations of such
aircraft within, or the operation of such vessel or aircraft within and
without 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 to
contribution solely by reason of liability for any federal tax against
which credit may be taken for contributions paid into a state
unemployment compensation fund.
(i) The following:
(1) Service performed after December 31, 1971, by an
individual in the employ of this state or any of its
instrumentalities (or in the employ of this state and one (1) or
more other states or their instrumentalities) for a hospital or
eligible postsecondary educational institution located in
Indiana.
(2) Service performed after December 31, 1977, by an
individual in the employ of this state or a political subdivision
of the state or any instrumentality of the state or a political
subdivision, or any instrumentality which is wholly owned by
the state and one (1) or more other states or political
subdivisions, if the service is excluded from "employment" as
defined in Section 3306(c)(7) of the Federal Unemployment
Tax Act (26 U.S.C. 3306(c)(7)). However, service performed
after December 31, 1977, as the following is excluded:
(A) An elected official.
(B) A member of a legislative body or of the judiciary of a
state or political subdivision.
(C) A member of the state national guard or air national
guard.
(D) An employee serving on a temporary basis in the case of
fire, snow, storm, earthquake, flood, or similar emergency.
(E) An individual in a position which, under the laws of the
state, is designated as:
(i) a major nontenured policymaking or advisory position;
or
(ii) a policymaking or advisory position the performance
of the duties of which ordinarily does not require more
than eight (8) hours per week.
(3) Service performed after March 31, 1981, by an individual
whose service is part of an unemployment work relief or work
training program assisted or financed in whole by any federal
agency or an agency of this state or a political subdivision of
this state, by an individual receiving such work relief or work
training is excluded.
(j) Service performed after December 31, 1971, by an individual
in the employ of a religious, charitable, educational, or other
organization, 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 Section
3306(c)(8) of that act (26 U.S.C. 3306(c)(8)).
(2) The organization had four (4) or more individuals in
employment 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, regardless
of 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 for
religious purposes and which is operated, supervised,
controlled, or principally supported by a church or
convention or association of churches.
(B) By a duly ordained, commissioned, or licensed minister
of a church in the exercise of his ministry or by a member of
a religious order in the exercise of duties required by such
order.
(C) Before January 1, 1978, in the employ of a school which
is not an eligible postsecondary educational institution.
(D) In a facility conducted for the purpose of carrying out a
program of rehabilitation for individuals whose earning
capacity is impaired by age or physical or mental deficiency
or injury or providing remunerative work for individuals
who because of their impaired physical or mental capacity
cannot be readily absorbed in the competitive labor market
by an individual receiving such rehabilitation or
remunerative work.
(E) As part of an unemployment work relief or work training
program assisted or financed in whole or in part by any
federal agency or an agency of a state or political
subdivision thereof, by an individual receiving such work
relief or work training.
(k) The service of an individual who is a citizen of the United
States, performed outside the United States (except in Canada), after
December 31, 1971, in the employ of an American employer (other
than service which is deemed "employment" under the provisions of
subsection (a), (b), or (e) or the parallel provisions of another state's
law), if the following apply:
(1) The employer's principal place of business in the United
States 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 this
state;
(C) a partnership, limited liability partnership, or a trust and
the number of the partners or trustees who are residents of
this 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 limited
liability company, a joint stock company, or an insurance
company (referred to as an "entity" in this clause), and
either:
(i) the entity is organized under the laws of this state; or
(ii) the number of owners, members, or beneficiaries who
are residents of this state is greater than the number who
are residents of any one (1) other state.
(3) None of the criteria of subdivisions (1) and (2) is met but
the employer has elected coverage in this state or, the employer
having failed to elect coverage in any state, the individual has
filed a claim for benefits, based on such service, under the law
of 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, if
two-thirds (2/3) or more of the partners are residents of the
United States;
(C) a trust, if all of the trustees are residents of the United
States; or
(D) a corporation, an association, a joint venture, an estate,
a limited liability company, a joint stock company, or an
insurance company organized or established under the laws
of the United States or of any state.
(l) The term "employment" also includes the following:
(1) Service performed after December 31, 1977, by an
individual in agricultural labor (as defined in section 3(c) of this
chapter) when the service is performed for an employing unit
which:
(A) during any calendar quarter in either the current or
preceding calendar year paid cash remuneration of twenty
thousand dollars ($20,000) or more to individuals employed
in agricultural labor; or
(B) for some portion of a day in each of twenty (20) different
calendar 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 a
member of a crew furnished by a crew leader to perform service
in agricultural labor for any other person shall be treated as an
employee of the crew leader:
(A) if the crew leader holds a valid certificate of registration
under the Farm Labor Contractor Registration Act of 1963,
or substantially all the members of the crew operate or
maintain tractors, mechanized harvesting or crop dusting
equipment, or any other mechanized equipment, which is
provided by the crew leader; and
(B) if the individual is not an employee of another person
within the meaning of section 1 of this chapter.
(3) For the purposes of subdivision (1), in the case of an
individual who is furnished by a crew leader to perform service
in agricultural labor for any other person and who is not treated
as an employee of the crew leader under subdivision (2):
(A) the other person and not the crew leader shall be treated
as the employer of the individual; and
(B) the other person shall be treated as having paid cash
remuneration to the individual in an amount equal to the
amount of cash remuneration paid to the individual by the
crew leader (either on the individual's own behalf or on
behalf of the other person) for the service in agricultural
labor 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 agricultural
labor for any other person;
(B) pays (either on the individual's own behalf or on behalf
of the other person) the agricultural laborers furnished by the
individual for the service in agricultural labor performed by
them; and
(C) has not entered into a written agreement with the other
person under which the individual is designated as an
employee of the other person.
(m) The term "employment" includes domestic service after
December 31, 1977, in a private home, local college club, or local
chapter of a college fraternity or sorority performed for a person who
paid cash remuneration of one thousand dollars ($1,000) or more
after December 31, 1977, in the current calendar year or the
preceding calendar year to individuals employed in the domestic
service in any calendar quarter.
(Formerly: Acts 1947, c.208, s.802; Acts 1971, P.L.355, SEC.14.) As
amended 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, service
performed prior to January 1, 1978, in the employ of this state,
any other state, any town or city, or political subdivision, or any
instrumentality of any of them, other than service performed in
the employ of a municipally owned public utility as defined in
this article; or service performed in the employ of the United
States of America, or an instrumentality of the United States
immune under the Constitution of the United States from the
contributions imposed by this article, except that to the extent
that the Congress of the United States shall permit states to
require any instrumentalities of the United States to make
payments into an unemployment fund under a state
unemployment compensation statute, all of the provisions of
this article shall be applicable to such instrumentalities, in the
same manner, to the same extent, and on the same terms as to
all other employers, employing units, individuals, and services.
However, if this state shall not be certified for any year by the
Secretary of Labor under Section 3304 of the Internal Revenue
Code the payments required of such instrumentalities with
respect to such year shall be refunded by the commissioner
from the fund in the same manner and within the same period
as is provided in IC 22-4-32-19 with respect to contribution
erroneously paid or wrongfully assessed.
(2) Service with respect to which unemployment compensation
is payable under an unemployment compensation system
established by an Act of Congress; however, the department is
authorized to enter into agreements with the proper agencies
under such Act of Congress which agreements shall become
effective ten (10) days after publication thereof, in accordance
with rules adopted by the department under IC 4-22-2, to
provide reciprocal treatment to individuals who have, after
acquiring potential rights to benefits under this article, acquired
rights to unemployment compensation under such Act of
Congress, or who have, after having acquired potential rights to
unemployment compensation under such Act of Congress,
acquired rights to benefits under this article.
(3) "Agricultural labor" as provided in section 2(l)(1) of this
chapter shall include only services performed:
(A) on a farm, in the employ of any person, in connection
with cultivating the soil or in connection with raising or
harvesting any agricultural or horticultural commodity,
including the raising, shearing, feeding, caring for, training,
and management of livestock, bees, poultry, and furbearing
animals and wildlife;
(B) in the employ of the owner or tenant or other operator of
a farm, in connection with the operation, management,
conservation, improvement, or maintenance of such farm
and its tools and equipment, or in salvaging timber or
clearing land of brush and other debris left by a hurricane, if
the major part of such service is performed on a farm;
(C) in connection with the production or harvesting of any
commodity defined as an agricultural commodity in Section
15(g) of the Agricultural Marketing Act (12 U.S.C.
1141j(g)) as amended, or in connection with the operation or
maintenance of ditches, canals, reservoirs, or waterways, not
owned or operated for profit, used exclusively for supplying
and 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 for
transportation to market, in its unmanufactured state, any
agricultural or horticultural commodity; but only if such
operator produced more than one-half (1/2) of the
commodity with respect to which such service is
performed; or
(ii) a group of operators of farms (or a cooperative
organization of which such operators are members) in the
performance of service described in item (i), but only if
such operators produce more than one-half (1/2) of the
commodity with respect to which such service is
performed;
except the provisions of items (i) and (ii) shall not be
deemed to be applicable with respect to service performed in
connection with commercial canning or commercial freezing
or in connection with any agricultural or horticultural
commodity after its delivery to a terminal market for
distribution for consumption; or
(E) on a farm operated for profit if such service is not in the
course of the employer's trade or business or is domestic
service 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 primarily
for the raising of agricultural or horticultural commodities.
(5) Domestic service in a private home, local college club, or
local chapter of a college fraternity or sorority, except as
provided in section 2(m) of this chapter.
(6) Service performed on or in connection with a vessel or
aircraft not an American vessel or American aircraft, if the
employee is employed on and in connection with such vessel or
aircraft when outside the United States.
(7) Service performed by an individual in the employ of child
or spouse, and service performed by a child under the age of
twenty-one (21) in the employ of a parent.
(8) Service not in the course of the employing unit's trade or
business performed in any calendar quarter by an individual,
unless the cash remuneration paid for such service is fifty
dollars ($50) or more and such service is performed by an
individual who is regularly employed by such employing unit
to perform such service. For the purposes of this subdivision, an
individual shall be deemed to be regularly employed to perform
service not in the course of an employing unit's trade or
business during a calendar quarter only if:
(A) on each of some of twenty-four (24) days during such
quarter such individual performs such service for some
portion of the day; or
(B) such individual was regularly employed (as determined
under 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 quarter
in the employ of any organization exempt from income tax
under Section 501 of the Internal Revenue Code (except those
services included in sections 2(i) and 2(j) of this chapter if the
remuneration for such service is less than fifty dollars ($50)).
(10) Service performed in the employ of a hospital, if such
service is performed by a patient of such hospital.
(11) Service performed in the employ of a school or eligible
postsecondary educational institution if the service is
performed:
(A) by a student who is enrolled and is regularly attending
classes at the school or eligible postsecondary educational
institution; or
(B) by the spouse of such a student, if such spouse is
advised, at the time such spouse commences to perform such
service, that:
(i) the employment of such spouse to perform such service
is provided under a program to provide financial
assistance to such student by the school or eligible
postsecondary educational institution; and
(ii) such employment will not be covered by any program
of unemployment insurance.
(12) Service performed by an individual who is enrolled at a
nonprofit or public educational institution which normally
maintains a regular faculty and curriculum and normally has a
regularly organized body of students in attendance at the place
where its educational activities are carried on as a student in a
full-time program, taken for credit at such institution, which
combines academic instruction with work experience, if such
service is an integral part of such program, and such institution
has so certified to the employer, except that this subdivision
shall not apply to service performed in a program established
for or on behalf of an employer or group of employers.
(13) Service performed in the employ of a government foreign
to the United States of America, including service as a consular
or other officer or employee or a nondiplomatic representative.
(14) Service performed in the employ of an instrumentality
wholly owned by a government foreign to that of the United
States of America, if the service is of a character similar to that
performed in foreign countries by employees of the United
States of America or of an instrumentality thereof, and if the
board finds that the Secretary of State of the United States has
certified to the Secretary of the Treasury of the United States
that the government, foreign to the United States, with respect
to whose instrumentality exemption is claimed, grants an
equivalent exemption with respect to similar service performed
in such country by employees of the United States and of
instrumentalities thereof.
(15) Service performed as a student nurse in the employ of a
hospital or nurses' training school by an individual who is
enrolled and is regularly attending classes in a nurses' training
school chartered or approved pursuant to state law; and service
performed as an intern in the employ of a hospital by an
individual who has completed a four (4) year course in a
medical school chartered or approved pursuant to state law.
(16) Service performed by an individual as an insurance
producer or as an insurance solicitor, if all such service
performed by such individual is performed for remuneration
solely by way of commission.
(17) Service performed by an individual:
(A) under the age of eighteen (18) in the delivery or
distribution of newspapers or shopping news, not including
delivery or distribution to any point for subsequent delivery
or distribution; or
(B) in, and at the time of, the sale of newspapers or
magazines to ultimate consumers, under an arrangement
under which the newspapers or magazines are to be sold by
the individual at a fixed price, the individual's compensation
being based on the retention of the excess of such price over
the amount at which the newspapers or magazines are
charged to the individual, whether or not the individual is
guaranteed a minimum amount of compensation for such
service, or is entitled to be credited with the unsold
newspapers or magazines turned back.
(18) Service performed in the employ of an international
organization.
(19) Except as provided in IC 22-4-7-1, services covered by an
election duly approved by the agency charged with the
administration of any other state or federal unemployment
compensation law in accordance with an arrangement pursuant
to IC 22-4-22-1 through IC 22-4-22-5, during the effective
period of such election.
(20) If the service performed during one-half (1/2) or more of
any pay period by an individual for an employing unit
constitutes employment, all the services of such individual for
such period shall be deemed to be employment; but if the
services performed during more than one-half (1/2) of any pay
period by such an individual do not constitute employment, then
none of the services of such individual for such period shall be
deemed to be employment. As used in this subsection, "pay
period" means a period of not more than thirty-one (31)
consecutive days for which a payment of remuneration is
ordinarily made to the individual by the employing unit. This
subsection shall not be applicable with respect to services
performed in a pay period by any such individual where any
such service is excepted by subdivision (2).
(21) Service performed by an inmate of a custodial or penal
institution.
(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 include
an owner-operator that provides a motor vehicle and the services of
a driver to a motor carrier under a written contract that is subject to
IC 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" means
services performed for a seasonal employer during the seasonal
period in the employer's seasonal operations, after the effective date
of a seasonal determination with respect to the seasonal employer.
(b) As used in this article, "seasonal worker" means an individual
who:
(1) has been employed by a seasonal employer in seasonal
employment during a regularly recurring period or periods of
less than twenty-six (26) weeks in a calendar year for all
seasonal periods, as determined by the department;
(2) has been hired for a specific temporary seasonal period as
determined by the department; and
(3) has been notified in writing at the time hired, or immediately
following the seasonal determination by the department,
whichever is later:
(A) that the individual is performing services in seasonal
employment for a seasonal employer; and
(B) that the individual's employment is limited to the
beginning and ending dates of the employer's seasonal
period as determined by the department.
As added by P.L.228-1983, SEC.2. Amended by P.L.18-1987,
SEC.29.