288.034. Employment defined.
Employment defined.
288.034. 1. "Employment" means service, including service ininterstate commerce, performed for wages or under any contract of hire,written or oral, express or implied, and notwithstanding any otherprovisions of this section, service with respect to which a tax is requiredto be paid under any federal unemployment tax law imposing a tax againstwhich credit may be taken for contributions required to be paid into astate unemployment fund or which, as a condition for full tax creditagainst the tax imposed by the Federal Unemployment Tax Act, is required tobe covered under this law.
2. The term "employment" shall include an individual's entireservice, performed within or both within and without this state if:
(1) The service is localized in this state; or
(2) The service is not localized in any state but some of the serviceis performed in this state and the base of operations, or, if there is nobase of operations, then the place from which such service is directed orcontrolled, is in this state; or the base of operations or place from whichsuch service is directed or controlled is not in any state in which somepart of the service is performed but the individual's residence is in thisstate.
3. Service performed by an individual for wages shall be deemed to beemployment subject to this law:
(1) If covered by an election filed and approved pursuant tosubdivision (2) of subsection 3 of section 288.080;
(2) If covered by an arrangement pursuant to section 288.340 betweenthe division and the agency charged with the administration of any otherstate or federal unemployment insurance law, pursuant to which all servicesperformed by an individual for an employing unit are deemed to be performedentirely within this state.
4. Service shall be deemed to be localized within a state if theservice is performed entirely within such state; or the service isperformed both within and without such state, but the service performedwithout such state is incidental to the individual's service within thestate; for example, is temporary or transitory in nature or consists ofisolated transactions.
5. Service performed by an individual for remuneration shall bedeemed to be employment subject to this law unless it is shown to thesatisfaction of the division that such services were performed by anindependent contractor. In determining the existence of the independentcontractor relationship, the common law of agency right to control shall beapplied. The common law of agency right to control test shall include butnot be limited to: if the alleged employer retains the right to controlthe manner and means by which the results are to be accomplished, theindividual who performs the service is an employee. If only the resultsare controlled, the individual performing the service is an independentcontractor.
6. The term "employment" shall include service performed for wages asan agent-driver or commission-driver engaged in distributing meat products,vegetable products, fruit products, bakery products, beverages (other thanmilk), or laundry or dry-cleaning services, for his or her principal; or asa traveling or city salesman, other than as an agent-driver orcommission-driver, engaged upon a full-time basis in the solicitation onbehalf of, and the transmission to, his or her principal (except forsideline sales activities on behalf of some other person) of orders fromwholesalers, retailers, contractors, or operators of hotels, restaurants,or other similar establishments for merchandise for resale or supplies foruse in their business operations, provided:
(1) The contract of service contemplates that substantially all ofthe services are to be performed personally by such individual; and
(2) The individual does not have a substantial investment infacilities used in connection with the performance of the services (otherthan in facilities for transportation); and
(3) The services are not in the nature of a single transaction thatis not part of a continuing relationship with the person for whom theservices are performed.
7. Service performed by an individual in the employ of this state orany political subdivision thereof or any instrumentality of any one or moreof the foregoing which is wholly owned by this state and one or more otherstates or political subdivisions, or any service performed in the employ ofany instrumentality of this state or of any political subdivision thereof,and one or more other states or political subdivisions, provided that suchservice is excluded from "employment" as defined in the FederalUnemployment Tax Act by Section 3306(c)(7) of that act and is not excludedfrom "employment" pursuant to subsection 9 of this section, shall be"employment" subject to this law.
8. Service performed by an individual in the employ of a corporationor any community chest, fund, or foundation organized and operatedexclusively for religious, charitable, scientific, testing for publicsafety, literary, or educational purposes, or for the prevention of crueltyto children or animals, no part of the net earnings of which inures to thebenefit of any private shareholder or individual, or other organizationdescribed in Section 501(c)(3) of the Internal Revenue Code which is exemptfrom income tax under Section 501(a) of that code if the organization hadfour or more individuals in employment for some portion of a day in each oftwenty different weeks whether or not such weeks were consecutive within acalendar year regardless of whether they were employed at the same momentof time shall be "employment" subject to this law.
9. For the purposes of subsections 7 and 8 of this section, the term"employment" does not apply to service performed:
(1) In the employ of a church or convention or association ofchurches, or an organization which is operated primarily for religiouspurposes and which is operated, supervised, controlled, or principallysupported by a church or convention or association of churches; or
(2) By a duly ordained, commissioned, or licensed minister of achurch in the exercise of such minister's ministry or by a member of areligious order in the exercise of duties required by such order; or
(3) In the employ of a governmental entity referred to in subdivision(3) of subsection 1 of section 288.032 if such service is performed by anindividual in the exercise of duties:
(a) As an elected official;
(b) As a member of a legislative body, or a member of the judiciary,of a state or political subdivision;
(c) As a member of the state national guard or air national guard;
(d) As an employee serving on a temporary basis in case of fire,storm, snow, earthquake, flood or similar emergency;
(e) In a position which, under or pursuant to the laws of this state,is designated as (i) a major nontenured policy-making or advisory position,or (ii) a policy-making or advisory position the performance of the dutiesof which ordinarily does not require more than eight hours per week; or
(4) In a facility conducted for the purpose of carrying out a programof rehabilitation for individuals whose earning capacity is impaired by ageor physical or mental deficiency or injury or providing remunerative workfor individuals who because of their impaired physical or mental capacitycannot be readily absorbed in the competitive labor market, by anindividual receiving such rehabilitation or remunerative work; or
(5) As part of an unemployment work-relief or work-training programassisted or financed in whole or in part by any federal agency or an agencyof a state or political subdivision thereof, by an individual receivingsuch work relief or work training; or
(6) By an inmate of a custodial or penal institution; or
(7) In the employ of a school, college, or university, if suchservice is performed (i) by a student who is enrolled and is regularlyattending classes at such school, college, or university, or (ii) by thespouse of such a student, if such spouse is advised, at the time suchspouse commences to perform such service, that (I) the employment of suchspouse to perform such service is provided under a program to providefinancial assistance to such student by such school, college, oruniversity, and (II) such employment will not be covered by any program ofunemployment insurance.
10. The term "employment" shall include the service of an individualwho is a citizen of the United States, performed outside the United States(except in Canada), if:
(1) The employer's principal place of business in the United Statesis located in this state; or
(2) The employer has no place of business in the United States, but:
(a) The employer is an individual who is a resident of this state; or
(b) The employer is a corporation which is organized under the lawsof this state; or
(c) The employer is a partnership or a trust and the number of thepartners or trustees who are residents of this state is greater than thenumber who are residents of any one other state; or
(3) None of the criteria of subdivisions (1) and (2) of thissubsection is met but the employer has elected coverage in this state or,the employer having failed to elect coverage in any state, the individualhas filed a claim for benefits, based on such service, under the law ofthis state;
(4) As used in this subsection and in subsection 11 of this section,the term "United States" includes the states, the District of Columbia andthe Commonwealth of Puerto Rico.
11. An "American employer", for the purposes of subsection 10 of thissection, means a person who is:
(1) An individual who is a resident of the United States; or
(2) A partnership, if two-thirds or more of the partners areresidents of the United States; or
(3) A trust, if all of the trustees are residents of the UnitedStates; or
(4) A corporation organized under the laws of the United States or ofany state.
12. The term "employment" shall not include:
(1) Service performed by an individual in agricultural labor;
(a) For the purposes of this subdivision, the term "agriculturallabor" means remunerated service performed:
a. On a farm, in the employ of any person, in connection withcultivating the soil, or in connection with raising or harvesting anyagricultural 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, ormaintenance of such farm and its tools and equipment, or in salvagingtimber or clearing 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 any commoditydefined as an agricultural commodity in Section 15(g) of the FederalAgricultural Marketing Act, as amended (46 Stat. 1550, Sec. 3; 12 U.S.C.1441j), or in connection with the ginning of cotton, or in connection withthe operation or maintenance of ditches, canals, reservoirs, or waterways,not owned or operated for profit, used exclusively for supplying andstoring water for farming purposes;
d. i. In the employ of the operator of a farm in handling, planting,drying, packing, packaging, processing, freezing, grading, storing, ordelivering to storage or to market or to a carrier for transportation tomarket, in its unmanufactured state, any agricultural or horticulturalcommodity; but only if such operator produced more than one-half of thecommodity with respect to which such service is performed;
ii. In the employ of a group of operators of farms (or a cooperativeorganization of which such operators are members) in the performance ofservices described in item i of this subparagraph, but only if suchoperators produced more than one-half of the commodity with respect towhich such service is performed;
iii. The provisions of items i and ii of this subparagraph shall notbe deemed to be applicable with respect to service performed in connectionwith commercial canning or commercial freezing or in connection with anyagricultural or horticultural commodity after its delivery to a terminalmarket for distribution for consumption; or
e. On a farm operated for profit if such service is not in the courseof the employer's trade or business. As used in this paragraph, the term"farm" includes stock, dairy, poultry, fruit, furbearing animals, and truckfarms, plantations, ranches, nurseries, ranges, greenhouses or othersimilar structures, used primarily for the raising of agricultural orhorticultural commodities, and orchards;
(b) The term "employment" shall include service performed afterDecember 31, 1977, by an individual in agricultural labor as defined inparagraph (a) of this subdivision when such service is performed for aperson who, during any calendar quarter, paid remuneration in cash oftwenty thousand dollars or more to individuals employed in agriculturallabor or for some portion of a day in a calendar year in each of twentydifferent calendar weeks, whether or not such weeks were consecutive,employed in agricultural labor ten or more individuals, regardless ofwhether they were employed at the same moment of time;
(c) For the purposes of this subsection any individual who is amember of a crew furnished by a crew leader to perform service inagricultural labor for any other person shall be considered as employed bysuch crew leader:
a. If such crew leader holds a valid certificate of registrationunder the Farm Labor Contractor Registration Act of 1963; or substantiallyall the members of such crew operate or maintain tractors, mechanizedharvesting or crop-dusting equipment, or any other mechanized equipment,which is provided by such crew leader; and
b. If such individual is not in employment by such other person;
c. If any individual is furnished by a crew leader to perform servicein agricultural labor for any other person and that individual is not inthe employment of the crew leader:
i. Such other person and not the crew leader shall be treated as theemployer of such individual; and
ii. Such other person shall be treated as having paid cashremuneration to such individual in an amount equal to the amount of cashremuneration paid to such individual by the crew leader (either on his orher own behalf or on behalf of such other person) for the service inagricultural labor performed for such other person;
d. For the purposes of this subsection, the term "crew leader" meansan individual who:
i. Furnishes individuals to perform service in agricultural labor forany other person;
ii. Pays (either on his or her own behalf or on behalf of such otherperson) the individuals so furnished by him or her for the service inagricultural labor performed by them; and
iii. Has not entered into a written agreement with such other personunder which such individual is designated as in employment by such otherperson;
(2) Domestic service in a private home except as provided insubsection 13 of this section;
(3) Service performed by an individual under the age of eighteenyears in the delivery or distribution of newspapers or shopping news butshall not include delivery or distribution to any point for subsequentdelivery or distribution;
(4) Service performed by an individual in, and at the time of, thesale of newspapers or magazines to ultimate consumers under an arrangementunder which the newspapers or magazines are to be sold by him or her at afixed price, his or her compensation being based on the retention of theexcess of such price over the amount at which the newspapers or magazinesare charged to him or her, whether or not he or she is guaranteed a minimumamount of compensation for such service, or is entitled to be credited withthe unsold newspapers or magazines turned back;
(5) Service performed by an individual in the employ of his or herson, daughter, or spouse, and service performed by a child under the age oftwenty-one in the employ of his or her father or mother;
(6) Except as otherwise provided in this law, service performed inthe employ of a corporation, community chest, fund or foundation, organizedand operated exclusively for religious, charitable, scientific, literary,or educational purposes, or for the prevention of cruelty to children oranimals, no part of the net earnings of which inures to the benefit of anyprivate shareholder or individual;
(7) Services with respect to which unemployment insurance is payableunder an unemployment insurance system established by an act of Congress;
(8) Service performed in the employ of a foreign government;
(9) Service performed in the employ of an instrumentality whollyowned by a foreign government:
(a) If the service is of a character similar to that performed inforeign countries by employees of the United States government or of aninstrumentality thereof; and
(b) If the division finds that the foreign government, with respectto whose instrumentality exemption is claimed, grants an equivalentexemption with respect to similar service performed in the foreign countryby employees of the United States government and of instrumentalitiesthereof. The certification of the United States Secretary of State to theUnited States Secretary of Treasury shall constitute prima facie evidenceof such equivalent exemption;
(10) Service covered by an arrangement between the division and theagency charged with the administration of any other state or federalunemployment insurance law pursuant to which all services performed by anindividual for an employing unit during the period covered by the employingunit's approved election are deemed to be performed entirely within thejurisdiction of such other state or federal agency;
(11) Service performed in any calendar quarter in the employ of aschool, college or university not otherwise excluded, if such service isperformed by a student who is enrolled and regularly attending classes atsuch school, college, or university, and the remuneration for such servicedoes not exceed fifty dollars (exclusive of board, room, and tuition);
(12) Service performed by an individual for a person as a licensedinsurance agent, a licensed insurance broker, or an insurance solicitor, ifall such service performed by such individual for such person is performedfor remuneration solely by way of commissions;
(13) Domestic service performed in the employ of a local college clubor of a local chapter of a college fraternity or sorority, except asprovided in subsection 13 of this section;
(14) Services performed after March 31, 1982, in programs authorizedand funded by the Comprehensive Employment and Training Act by participantsof such programs, except those programs with respect to which unemploymentinsurance coverage is required by the Comprehensive Employment and TrainingAct or regulations issued pursuant thereto;
(15) Service performed by an individual who is enrolled at anonprofit or public educational institution which normally maintains aregular faculty and curriculum and normally has a regularly organized bodyof students in attendance at the place where its educational activities arecarried on, as a student in a full-time program, taken for credit at suchinstitution, which combines academic instruction with work experience, ifsuch service is an integral part of such program, and such institution hasso certified to the employer; except, that this subdivision shall not applyto service performed in a program established for or on behalf of anemployer or group of employers;
(16) Services performed by a licensed real estate salesperson orlicensed real estate broker if at least eighty percent of the remuneration,whether or not paid in cash, for the services performed rather than to thenumber of hours worked is directly related to sales performed pursuant to awritten contract between such individual and the person for whom theservices are performed and such contract provides that the individual willnot be treated as an employee with respect to such services for federal taxpurposes;
(17) Services performed as a direct seller who is engaged in thetrade or business of the delivering or distribution of newspapers orshopping news, including any services directly related to such trade orbusiness, or services performed as a direct seller who is engaged in thetrade or business of selling, or soliciting the sale of, consumer productsin the home or otherwise than in, or affiliated with, a permanent, fixedretail establishment, if eighty percent or more of the remuneration,whether or not paid in cash, for the services performed rather than thenumber of hours worked is directly related to sales performed pursuant to awritten contract between such direct seller and the person for whom theservices are performed, and such contract provides that the individual willnot be treated as an employee with respect to such services for federal taxpurposes;
(18) Services performed as a volunteer research subject who is paidon a per study basis for scientific, medical or drug-related testing forany organization other than one described in Section 501(c)(3) of theInternal Revenue Code or any governmental entity.
13. The term "employment" shall include domestic service as definedin subdivisions (2) and (13) of subsection 12 of this section performedafter December 31, 1977, if the employing unit for which such service isperformed paid cash wages of one thousand dollars or more for such servicesin any calendar quarter after December 31, 1977.
14. The term "employment" shall include or exclude the entire serviceof an individual for an employing unit during a pay period in which suchindividual's services are not all excluded under the foregoing provisions,on the following basis: if the services performed during one-half or moreof any pay period constitute employment as otherwise defined in this law,all the services performed during such period shall be deemed to beemployment; but if the services performed during more than one-half of anysuch pay period do not constitute employment as otherwise defined in thislaw, then none of the services for such period shall be deemed to beemployment. (As used in this subsection, the term "pay period" means aperiod of not more than thirty-one consecutive days for which a payment ofremuneration is ordinarily made to the individual by the employing unitemploying such individual.) This subsection shall not be applicable withrespect to service performed in a pay period where any such service isexcluded pursuant to subdivision (8) of subsection 12 of this section.
15. The term "employment" shall not include the services of afull-time student who performed such services in the employ of an organizedsummer camp for less than thirteen calendar weeks in such calendar year.
16. For the purpose of subsection 15 of this section, an individualshall be treated as a full-time student for any period:
(1) During which the individual is enrolled as a full-time student atan educational institution; or
(2) Which is between academic years or terms if:
(a) The individual was enrolled as a full-time student at aneducational institution for the immediately preceding academic year orterm; and
(b) There is a reasonable assurance that the individual will be soenrolled for the immediately succeeding academic year or term after theperiod described in paragraph (a) of this subdivision.
17. For the purpose of subsection 15 of this section, an "organizedsummer camp" shall mean a summer camp which:
(1) Did not operate for more than seven months in the calendar yearand did not operate for more than seven months in the preceding calendaryear; or
(2) Had average gross receipts for any six months in the precedingcalendar year which were not more than thirty-three and one-third percentof its average gross receipts for the other six months in the precedingcalendar year.
18. The term "employment" shall not mean service performed by aremodeling salesperson acting as an independent contractor; however, if thefederal Internal Revenue Service determines that a contractual relationshipbetween a direct provider and an individual acting as an independentcontractor pursuant to the provisions of this subsection is in fact anemployer-employee relationship for the purposes of federal law, then thatrelationship shall be considered as an employer-employee relationship forthe purposes of this chapter.
(L. 1951 p. 564 § 288.030, A.L. 1957 p. 531 § 288.033, A.L. 1965 p. 420, A.L. 1972 S.B. 474, H.B. 1017, A.L. 1975 H.B. 42 & 441, A.L. 1977 H.B. 707, A.L. 1982 H.B. 1521, A.L. 1984 H.B. 1251 & 1549, A.L. 1985 H.B. 373, A.L. 1988 H.B. 1485, A.L. 1989 H.B. 380 & 427, A.L. 1991 H.B. 422, et al., A.L. 1992 S.B. 626, A.L. 1997 H.B. 472, A.L. 1998 S.B. 922, A.L. 2004 H.B. 1268 & 1211)Effective 1-01-05
(1976) "Employment" construed with regard to real estate salesmen and insurance salesmen. Beal v. Industrial Commission (A.), 535 S.W.2d 450.
(1977) Flower arranging held to be "manufacturing" and not agricultural labor even though employer grew the flowers. George F. Deutschmann, Inc. v. Leiser (A.), 546 S.W.2d 560.