Title 40. Labor
§401. Commissioner of Labor Powers and duties.
A. The Commissioner of Labor shall be the Chief Executive Officer of the Department of Labor, and shall supervise the work of that Department.
B. It shall be the duty of the Commissioner of Labor to:
1. foster, promote, and develop the welfare of the wage earners of this state;
2. improve working conditions of the wage earners;
3. advance opportunities of wage earners for profitable employment; and
4. carry into effect all laws in relation to labor enacted by the Legislature for which responsibility is assigned to the Commissioner of Labor.
C. The Commissioner of Labor may administer oaths, issue subpoenas for the attendance of witnesses and take testimony in all matters relating to the proper enforcement of all laws over which the Commissioner has supervision pursuant to the provisions of the laws of this state.
R.L.1910, § 3703; Laws 191011, c. 128, p. 281, § 1; Laws 1980, c. 159, § 7, emerg. eff. April 2, 1980; Laws 1991, c. 122, § 1, eff. July 1, 1991.
§40-1.1. Reciprocal agreements with labor departments of other states - Actions upon claims arising in other states.
A. The Commissioner of Labor may enter into reciprocal agreements with the Labor Department or corresponding agency of another state, or with the person, board, officer, or commission authorized to act on behalf of that department or agency having jurisdiction for the collection of wages unlawfully withheld from employees by out-of-state employers and for the collection of other debts lawfully owed to the State Department of Labor.
B. The Commissioner of Labor shall, upon the written request of the Department of Labor or other corresponding agency of any other state or of any person, board, officer or commission of such state authorized to act for and on behalf of such labor department or corresponding agency, maintain actions in the courts of this state upon assigned claims for wages, judgments and demands arising in such other state in the same manner and to the same extent that such actions by the Commissioner of Labor are authorized when arising in this state; provided, however, that such actions may be commenced and maintained only in those cases where such other state by appropriate legislation or by reciprocal agreement extends a like comity to cases arising in the state.
Added by Laws 1991, c. 122, § 2, eff. July 1, 1991.
§40-1-101. Short title.
SHORT TITLE. This act shall be known and may be cited as the Employment Security Act of 1980.
Added by Laws 1980, c. 323, § 1-101, eff. July 1, 1980.
§401102. Purpose of Act.
(1) Whoever makes a false statement or representation knowing it to be false or knowingly fails to disclose a material fact, to obtain or increase any benefit or other payment under this act or under the unemployment compensation law of any state or of the federal government, either for himself or for any other person, shall be guilty of a misdemeanor and shall be punished by a fine of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00), or by imprisonment for not longer than ninety (90) days, or by both such fine and imprisonment; and each such false statement or representation or failure to disclose a material fact shall constitute a separate offense for each week of benefits.
(2) Upon conviction sentences may be suspended or upon a plea of guilty judgment and sentencing may be deferred only upon the condition of full restitution to the Commission of all benefits so obtained or the excess of any benefits so increased.
Laws 1980, c. 323, § 1102, eff. July 1, 1980.
§40-1-103. Declaration of state public policy.
DECLARATION OF STATE PUBLIC POLICY. As a guide to the interpretation and application of this act, the public policy of this state is declared to be as follows: Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state. Unemployment is therefore a subject of general interest and concern which requires appropriate action by the Legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this greatest hazard of our economic life. This objective can be furthered by operating free public employment offices in affiliation with nationwide system of employment services, by devising appropriate methods for reducing the volume of unemployment and by the systematic accumulation of funds during periods of employment, thus maintaining purchasing power and limiting the serious social consequences of unemployment. The Legislature, therefore, declares that in its considered judgment the public good, and the general welfare of the citizens of this state require the enactment of this measure, under the police power of the state for the establishment and maintenance of free public employment offices and for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.
Added by Laws 1980, c. 323, § 1-103, eff. July 1, 1980.
§40-1-104. Saving clause.
SAVING CLAUSE. A. The Legislature reserves the right to amend or repeal all or any part of the Employment Security Act at any time and there shall be no vested private right of any kind against such amendment or repeal. All the rights, privileges, or immunities conferred by the Employment Security Act, or by acts done pursuant thereto, shall exist subject to the power of the Legislature to amend or repeal the Employment Security Act at any time.
B. If any provision of the Employment Security Act necessary for certification for administrative grants under the Social Security Act or tax credits under the Federal Unemployment Tax Act are determined to be inconsistent with federal requirements by a delegate of the Secretary of Labor, the Commission, with the concurrence of the Oklahoma Attorney General, is authorized to administer such provisions consistently with federal requirements until the Legislature has an opportunity to enact appropriate legislation during its next regularly scheduled session.
Added by Laws 1980, c. 323, § 1-104, eff. July 1, 1980. Amended by Laws 1982, c. 304, § 1, operative Oct. 1, 1982.
§40-1-106. Section captions.
SECTION CAPTIONS. Section captions are parts of this act.
Added by Laws 1980, c. 323, § 1-106, eff. July 1, 1980.
§40-1-107. Construction against implicit repeal.
CONSTRUCTION AGAINST IMPLICIT REPEAL. This act being a general act intended as a unified coverage of its subject matter, no part of it shall be deemed to be impliedly repealed by subsequent legislation if such construction can reasonably be avoided.
Added by Laws 1980, c. 323, § 1-107, eff. July 1, 1980.
§40-1-108. Indian tribes or tribal units - Benefits - Contributions or payments - Extended benefits - Delinquencies - No waiver of sovereign immunity.
A. The term "employer" shall include any Indian tribe for which service in employment is performed, as defined in the Employment Security Act of 1980.
B. The term "employment" shall include service performed in the employ of an Indian tribe, as defined in the Federal Unemployment Tax Act (FUTA), 26 U.S.C., Section 3306(u), provided such service is excluded from "employment" as defined in FUTA solely by reason of 26 U.S.C., Section 3306(c)(7), and is not otherwise excluded from employment under the Employment Security Act of 1980. For purposes of this section, the exclusions from employment in subparagraphs (c) and (e) of paragraph (7) of Section 1-210 of this title shall be applicable to services performed in the employ of an Indian tribe.
C. The terms "Indian tribe" and "tribal unit" shall have the meanings ascribed to them in federal law. "Tribal unit" includes subdivisions, subsidiaries, and business enterprises wholly owned by an Indian tribe.
D. Benefits based on service in employment defined in this section shall be payable in the same amount, on the same terms, and subject to the same conditions as benefits payable on the basis of other service subject to the Employment Security Act of 1980, provided wages used to establish the claim were paid during a time in which the account of the Indian tribe for which services were rendered was not terminated pursuant to subparagraph a of paragraph 1 of subsection F of this section.
E. 1. An Indian tribe or tribal unit subject to the Employment Security Act of 1980 shall pay contributions under the same terms and conditions as required of nongovernmental employers for profit subject to the Employment Security Act of 1980 unless the tribe elects to pay into the State Unemployment Compensation Fund amounts equal to the amount of benefits attributable to service in the employ of the Indian tribe.
2. An Indian tribe or tribal unit electing to make payments in lieu of contributions shall so notify the Oklahoma Employment Security Commission in writing before the last day of January of the calendar year in which the tribe wishes to begin making reimbursement payments. If the Commission determines the Indian tribe is eligible to exercise its option, the Indian tribe shall be liable for reimbursement payments in lieu of contributions in the same manner and subject to the same provisions that apply to reimbursing nonprofit organizations as provided in Part 8 of Article 3 of the Employment Security Act of 1980, including formation of group accounts, and the proportionate allocation of benefit costs, except that one hundred percent (100%) of the extended benefits attributable to the Indian tribe shall be reimbursed. Indian tribes shall determine whether reimbursement for benefits paid shall be elected by the tribe as a whole, by individual tribal units, or by combinations of individual tribal units. If any provision contained in Part 8 of Article 3 of the Employment Security Act of 1980, including the administrative rules implementing that Part, contradicts a provision of this section, the provision of this section shall control.
3. An Indian tribe or tribal unit shall be billed for the full amount of benefits attributable to service in the employ of the Indian tribe or tribal unit on the same schedule as other employing units that have elected to make payments in lieu of contributions.
F. 1. a. If an Indian tribe or tribal unit thereof fails to file the required reports and pay all late filing penalties or fails to make required payments under the Employment Security Act of 1980, including payment of all interest, penalties, surcharges, or fees, a notice of reporting or payment delinquency shall be mailed to the Indian tribe at its last-known address. If the delinquency is not corrected within ninety (90) days of the date of mailing of the notice of delinquency, the account of the Indian tribe shall be terminated and notice of termination shall be mailed to the tribe at its last-known address, together with a statement of protest rights available pursuant to Section 3-115 of this title. If the account of an Indian tribe is terminated pursuant to this subparagraph, the Indian tribe shall not be considered an "employer" for purposes of subsection A of this section, and services performed for the Indian tribe shall not be considered "employment" for purposes of subsection B of this section.
b. The Oklahoma Employment Security Commission may reinstate the account of any Indian tribe that loses coverage under subparagraph a of this subsection if the tribe pays all contributions, payments in lieu of contributions, interest, penalties, surcharges, and fees that are due and owing. Upon reinstatement, the tribe shall again be considered an "employer" for purposes of subsection A of this section and services performed for the tribe shall again be considered "employment" for purposes of subsection B of this section.
2. a. Failure of an Indian tribe or tribal unit to make required payments, including assessments of interest, penalties, surcharges, and fees within ninety (90) days of the due date for payment shall cause the Indian tribe to lose the option to make payments in lieu of contributions, as described in subsection E of this section, for the following tax year unless payment in full is received before January 31 of the next tax year.
b. Any Indian tribe that loses the option to make payments in lieu of contributions due to late payment or nonpayment, as described in subparagraph a of this paragraph, shall have the option reinstated if, after a period of one (1) year, all contribution payments have been timely made, provided no contributions, payments in lieu of contributions for benefits paid, interest, penalties, surcharges, or fees remain outstanding.
G. The notice of payment or reporting delinquency to Indian tribes or their tribal units, referred to in subparagraph a of paragraph 1 of subsection F of this section, shall include information that failure to make full payment and file required reports within the prescribed time frame shall cause:
1. The Indian tribe to be liable for taxes under FUTA;
2. The Indian tribe to lose the option to make payments in lieu of contributions;
3. The Indian tribe to be excepted from the definition of "employer", as provided in subsection A of this section; and
4. Services performed in the employ of the Indian tribe to be excepted from the definition of "employment", as provided in subsection B of this section.
H. Extended benefits paid that are attributable to service in the employ of an Indian tribe and not reimbursed by the United States government shall be financed in their entirety by the Indian tribe.
I. If an Indian tribe fails to make required payments under the Employment Security Act of 1980, including the payment of all interest, penalties, surcharges, and fees, within ninety (90) days of the mailing of the notice of payment delinquency, the Oklahoma Employment Security Commission shall immediately notify the United States Internal Revenue Service and the United States Department of Labor.
J. The provisions of subsections K and L of this section shall provide a transition for the implementation of Section 166 of Public Law 106-554 enacted by the Congress of the United States and effective December 21, 2000, so that Indian tribes may qualify for federal tax credits and employees of Indian tribes may be eligible for benefits.
K. Any Indian tribe which did not have an active account with the Oklahoma Employment Security Commission from January 1, 2001, to the effective date of this section, but which desires to be covered for benefits for that period of time, may elect to be subject to one of the following, if the tribe notifies the Commission of the election in writing:
1. To pay contributions. If the tribe elects to make payments for contributions, interest or penalties shall not be assessed against such tribe for the period from January 1, 2001, to the effective date of this section if full payment for all contributions due is made within twenty (20) days after an account is established for the tribe; or
2. To make payments in lieu of contributions. If the tribe elects to make payments in lieu of contributions, interest or penalties shall not be assessed against such tribe for the period from January 1, 2001, to the effective date of this section if all reports that are due for that period are filed within twenty (20) days after an account is established for the tribe.
L. Any Indian tribe which did not have an active account with the Oklahoma Employment Security Commission from January 1, 2001, to the effective date of this section and does not desire to be covered for benefits for that period shall be covered by the provisions of subsections A through I of this section. The coverage for any such tribe shall be prospective only and shall not entitle any employee of the tribe to benefits for any period prior to the effective date of this section.
M. Indian tribes paying contributions prior to the date of this section shall not be able to make an election to make payments in lieu of contributions for the period from January 1, 2001, to the effective date of this section. Any change in election shall be prospective only.
N. Participation by any Indian tribe in the state unemployment insurance system shall not operate as a waiver of the sovereign immunity of the tribe.
Added by Laws 2002, c. 452, § 1, eff. July 1, 2002. Amended by Laws 2008, c. 132, § 1, eff. Nov. 1, 2008.
§40-1-201. General definitions.
GENERAL DEFINITIONS. The words and phrases used in this act shall, unless the context clearly requires otherwise, have the meanings prescribed in Part 2 of this Article.
Added by Laws 1980, c. 323, § 1-201, eff. July 1, 1980.
§40-1-202. Base period.
BASE PERIOD. "Base period" means the first four (4) of the last five (5) completed calendar quarters immediately preceding the first day of an individual's benefit year.
Added by Laws 1980, c. 323, § 1-202, eff. July 1, 1980.
§40-1-202.1. Extended Base Period.
EXTENDED BASE PERIOD.
If an individual lacks sufficient base period wages because of a job-related injury for which the individual received total temporary disability payments awarded by the Workers' Compensation Court, upon written application by the claimant, an extended base period will be substituted for the current base period on a quarter-by-quarter basis as needed to establish a valid claim. "Extended base period" means the four quarters prior to the claimant's base period. These four quarters may be substituted for base period quarters on a quarter-by-quarter basis to establish a valid claim regardless of whether the wages have been used to establish a prior claim, except any wages earned that would render the Commission out of compliance with applicable federal law will be excluded if used in a prior claim. Benefits paid on the basis of an extended base period, which would not otherwise be payable, shall be noncharged.
Added by Laws 1997, c. 30, § 1, eff. July 1, 1997. Renumbered from § 1-202A of this title by Laws 2006, c. 176, § 29, eff. July 1, 2006.
§40-1-202.2. Alternative base period.
ALTERNATIVE BASE PERIOD.
“Alternative Base Period” means the most recent four (4) completed calendar quarters immediately preceding the first day of an individual’s benefit year. In the event that an individual’s claim uses an alternative base period to meet the wage requirement under Section 2-207 of Title 40 of the Oklahoma Statutes, this “alternative base period” shall be substituted for “base period” for all other purposes under the Employment Security Act of 1980.
Added by Laws 2002, c. 452, § 2, eff. Nov. 1, 2002. Renumbered from § 202B of this title by Laws 2006, c. 176, § 29, eff. July 1, 2006.
§40-1-202A. Renumbered as § 1-202.1 of this title by Laws 2006, c. 176, § 29, eff. July 1, 2006.
§40-1-202B. Renumbered as § 1-202.2 of this title by Laws 2006, c. 176, § 29, eff. July 1, 2006.
§40-1-203. Benefits.
BENEFITS. "Benefits" mean the money payments payable to an individual as provided in this act with respect to his unemployment, including extended benefits. The federal share of such extended benefits shall not be construed as benefits for the purposes of computing contribution rates under this act.
Added by Laws 1980, c. 323, § 1-203, eff. July 1, 1980.
§40-1-204. Benefit year.
BENEFIT YEAR. "Benefit year" with respect to any individual means the one-year period beginning with the first day of the first week with respect to which the individual first files a valid claim for benefits and thereafter the one-year period beginning with the first day of the first week with respect to which the individual next files a valid claim for benefits after the termination of his last preceding benefit year. Any claim for benefits shall be deemed a valid claim for the purpose of this section if the individual has been paid the wages for insured work required under this act.
Added by Laws 1980, c. 323, § 1-204, eff. July 1, 1980.
§40-1-205. Calendar quarter.
CALENDAR QUARTER. "Calendar quarter" means the period of three (3) consecutive calendar months ending on March 31, June 30, September 30, or December 31, or the equivalent thereof as the Commission may by regulation prescribe.
Added by Laws 1980, c. 323, § 1-205, eff. July 1, 1980.
§40-1-206. Commission, Commissioner.
COMMISSION, COMMISSIONER. "Commission" means the Oklahoma Employment Security Commission and "Commissioner" means a member of such Commission.
Added by Laws 1980, c. 323, § 1-206, eff. July 1, 1980.
§40-1-207. Contributions.
CONTRIBUTIONS. "Contributions" mean the money payments, including taxes and reimbursements, required by this act to be paid into the Unemployment Compensation Fund by an employer.
Added by Laws 1980, c. 323, § 1-207, eff. July 1, 1980.
§40-1-208. Employer.
EMPLOYER.
"Employer" means:
1. Any employing unit, except as provided under paragraphs 10 and 11 of this section, which:
a. for some portion of a day, but not necessarily simultaneously, in each of twenty (20) different calendar weeks, whether or not such weeks are or were consecutive, within either the calendar year or the preceding calendar year, and for the purpose of this definition if any week includes both December 31 and January 1, the days up to January 1 shall be deemed one (1) calendar week and the days beginning January 1 another such week, has or had in employment one or more individuals, irrespective of whether the same individuals are or were employed in each such day, or
b. in any calendar quarter, in either the calendar year or preceding calendar year paid for service in employment wages of One Thousand Five Hundred Dollars ($1,500.00) or more;
2. Any individual or employing unit, whether or not an employing unit at the time of the acquisition, which acquired substantially all of the organization, employees, trade, business, or assets thereof, of another which at the time of such acquisition was an employer subject to the Employment Security Act of 1980; or which acquired a part of the organization, employees, trade, or business of another employing unit which at the time of such acquisition was an employer subject to the Employment Security Act of 1980;
3. Any individual or employing unit, whether or not an employing unit at the time of acquisition, which acquired substantially all of the organization, employees, trade, business, or assets thereof, of another employing unit, if the employment record of such individual or employing unit subsequent to such acquisition, together with the employment record of the acquired unit prior to such acquisition, both within the same calendar year, would be sufficient to constitute an employing unit and employer subject to the Employment Security Act of 1980 under paragraph 1 of this section; or any individual or employing unit which acquired substantially all of the organization, employees, trade, business, or assets of another employing unit if such employing unit subsequent to such acquisition, and such acquired unit prior to such acquisition, both within the same calendar quarter, together paid for service in employment wages totaling One Thousand Five Hundred Dollars ($1,500.00) or more;
4. Any employing unit which, together with one or more other employing units, is owned or controlled, by legally enforceable means or otherwise, directly by the same interest, or which owns or controls one or more other employing units, by legally enforceable means or otherwise, and which, if treated as a single unit with such other employing unit, would be an employer under paragraph 1 of this section;
5. Any employing unit which, having become an employer under paragraph 1, 2, 3, 4, 6, 8, 10, 11 or 12 of this section has not, under Section 3-202 of this title, ceased to be an employer subject to the Employment Security Act of 1980;
6. For the effective period of its election pursuant to Section 3-203 of this title any other employing unit which has elected to become subject to the Employment Security Act of 1980;
7. Any department of this state, any other state, and all instrumentalities thereof, including any political subdivisions and their instrumentalities, for which service in employment, as defined in paragraph (3) of Section 1-210 of this title, is performed, except as provided under paragraphs 10 and 11 of this section;
8. Any employing unit for which service in employment, as defined in paragraph (4) of Section 1-210 of this title, is performed, except as provided under paragraphs 10 and 11 of this section;
9. For purposes of paragraphs 1, 8, 10 and 11 of this section, employment shall include service which would constitute employment but for the fact that the service is deemed to be performed entirely within another state pursuant to an election under an arrangement entered into in accordance with Section 4-702 of this title by the Oklahoma Employment Security Commission and an agency charged with the administration of any other state or federal unemployment compensation law;
10. Any employing unit for which agricultural labor as defined in paragraph (5) of Section 1-210 of this title is performed. In determining whether or not an employing unit for which service other than agricultural labor is also performed is an employer under paragraph 1, 7, 8 or 11 of this section, the wages earned or the employment of an employee performing service in agricultural labor shall not be taken into account;
11. Any employing unit for which domestic service in employment as defined in paragraph (6) of Section 1-210 of this title is performed. In determining whether or not an employing unit for which service other than domestic service is also performed is an employer under paragraph 1, 7, 8 or 10 of this section, the wages earned or the employment of an employee performing domestic service shall not be taken into account;
12. Any employing unit which is not an employer by reason of any other provisions of the Employment Security Act of 1980 shall nevertheless be an "employer" if either:
a. within the calendar year or preceding calendar year, service is or was performed, with respect to which the employing unit is liable for any federal tax against which credit may be taken by the employing unit for contributions required to be paid by it into a state unemployment fund, or
b. the employing unit is required to be an "employer" as a condition for approval of the Employment Security Act of 1980 for full tax credit to be allowed against the tax imposed by the Federal Unemployment Tax Act, 26 U.S.C., Section 3301 et seq.; or
13. If two or more employers share common ownership, management, or control, the Commission may combine their merit rating accounts, including their actual contribution and benefit experience, annual payrolls, and contribution rates into one account.
Added by Laws 1980, c. 323, § 1-208, eff. July 1, 1980. Amended by Laws 1990, c. 333, § 1, emerg. eff. May 31, 1990; Laws 1993, c. 219, § 1, eff. Sept. 1, 1993; Laws 1997, c. 30, § 2, eff. July 1, 1997; Laws 2005, c. 182, § 1, eff. Nov. 1, 2005; Laws 2006, c. 176, § 1, eff. July 1, 2006; Laws 2008, c. 132, § 2, eff. Nov. 1, 2008.
§40-1-208.1. Motor carrier not employer of lessor or driver.
MOTOR CARRIER NOT EMPLOYER OF LESSOR OR DRIVER.
In no event will a motor carrier be determined to be the employer of a lessor as defined in Section 166a or 230.29 of Title 47 of the Oklahoma Statutes, or of a driver receiving compensation from a lessor.
Added by Laws 1986, c. 223, § 23, emerg. eff. June 9, 1986. Amended by Laws 2002, c. 452, § 3, eff. Nov. 1, 2002. Renumbered from § 1-208A of this title by Laws 2006, c. 176, § 29, eff. July 1, 2006.
§40-1-208A. Renumbered as § 1-208.1 of this title by Laws 2006, c. 176, § 29, eff. July 1, 2006.
§40-1-209. Employing unit.
EMPLOYING UNIT.
"Employing unit" means any individual or type of organization, including any partnership, association, trust, estate, joint stock company, insurance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal representative of a deceased person, which has or subsequent to January 1, 1936, had in its employ one or more individuals performing services for it within this state.
All individuals performing services within this state for any employing unit which maintains two or more separate establishments within this state shall be deemed to be employed by a single employing unit for all the purposes of the Employment Security Act of 1980, except as provided under paragraphs (10) and (11) of Section 1-208 of this title.
Whenever any employing unit contracts with or has under it any contractor or subcontractor for any employment, which is part of its usual trade, occupation, profession, or business, unless the employing unit as well as each such contractor or subcontractor is an employer by reason of Section 1-208 or Section 3-203 of this title, the employing unit shall for all the purposes of the Employment Security Act of 1980 be deemed to employ each individual in the employ of each such contractor or subcontractor for each day during which such individual is engaged in performing such employment; except that each such contractor or subcontractor who is an employer by reason of Section 1-208 or Section 3-203 of this title shall alone be liable for the contributions measured by wages paid to individuals employed by the contractor or subcontractor, and except that any employing unit which shall become liable for and pay contributions with respect to individuals in the employ of any such contractor or subcontractor who is not an employer by reason of Section 1-208 or Section 3-203 of this title may recover the same from such contractor or subcontractor.
Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall be deemed to be employed by such employing unit for all the purposes of the Employment Security Act of 1980, whether such individual was hired or paid directly by such employing unit or by such agent or employee of an employing unit, provided the employing unit had actual or constructive knowledge of the employment.
Added by Laws 1980, c. 323, § 1-209, eff. July 1, 1980. Amended by Laws 2002, c. 452, § 4, eff. Nov. 1, 2002.
§40-1-209.1. Lessor employing unit.
LESSOR EMPLOYING UNIT. A. "Lessor employing unit" means any independently established business entity which engages in the business of providing leased employees to any other employer, individual, organization, partnership, corporation or other legal entity, referred to herein as a client lessee.
B. Any employer or any individual, organization, partnership, corporation or other legal entity which meets the definition of lessor employing unit shall be liable for contribution on wages paid by the lessor employing unit to individuals performing services for client lessees of the lessor employing unit.
C. Unless the lessor employing unit has timely complied with the provisions of this section, any employer, individual, organization, partnership, corporation or other legal entity leasing employees from any lessor employing unit shall be jointly and severally liable for any unpaid contributions, interest, penalties and fees due under this section from any lessor employing unit attributable to wages for services performed for the client lessee entity by the employees leased to the client lessee entity.
D. In order to relieve client lessees from joint and several liability imposed under this section, any lessor employing unit as defined herein may post and maintain a surety bond issued by a corporate surety authorized to do business in this state in an amount equivalent to the contributions for which the lessor employing unit was liable in the last calendar year in which it accrued contributions, or One Hundred Thousand Dollars ($100,000.00), whichever amount is the greater, to ensure prompt payment of contributions, interest, penalties and fees for which the lessor employing unit may be or may become liable under this section.
E. Any lessor employing unit as defined herein which is currently engaged in the business of leasing employees to client lessees shall comply with the provisions of this section by January 1, 1991.
F. Any lessor employing unit not engaged in the business of leasing employees to client lessees on or before the effective date of this act shall comply with the requirements herein before entering into lease agreements with client lessees.
Added by Laws 1990, c. 333, § 2, emerg. eff. May 31, 1990. Amended by Laws 1993, c. 219, § 2, eff. Sept. 1, 1993. Renumbered from § 1-209A of this title by Laws 2006, c. 176, § 29, eff. July 1, 2006.
§40-1-209A. Renumbered as § 1-209.1 of this title by Laws 2006, c. 176, § 29, eff. July 1, 2006.
§40-1-210. Employment.
EMPLOYMENT.
“Employment” means:
(1) Any service, including service in interstate commerce, performed by:
(a) any officer of a corporation; or
(b) any individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an employee.
(2) (a) any service, including service in interstate commerce, performed by any individual other than an individual who is an employee under paragraph (1) of this section who performs services for remuneration for any person:
(i) as an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages other than milk, or laundry or dry cleaning services, for his or her principal; or
(ii) as a traveling or city salesperson, 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, his or her 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;
(b) provided, the term “employment” shall include services described in divisions (i) and (ii) of subparagraph (a) of this paragraph if:
(i) the contract of service contemplates that substantially all of the services are to be performed personally by such individual;
(ii) 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; and
(iii) 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.
(3) Service performed in the employ of this state or any of its instrumentalities or any political subdivision thereof or any of its instrumentalities or any instrumentality of more than one of the foregoing or any instrumentality of any of the foregoing and one or more other states or political subdivisions; provided, that such service is excluded from “employment” as defined in the Federal Unemployment Tax Act, 26 U.S.C., Section 3306(c)(7), and is not excluded from “employment” under paragraph (7) of this section.
(4) Service performed by an individual in the employ of a community chest, fund, foundation or corporation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation and which does not participate in, or intervene in, including the publishing or distributing of statements, any political campaign on behalf of any candidate for public office; provided that such organization had four 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 calendar year or preceding calendar year, regardless of whether they were employed at the same moment of time.
(5) Service performed by an individual in agricultural labor as defined in subparagraph (a) of paragraph (15) of this section when:
(a) the service is performed for a person who:
(i) during any calendar quarter in either the calendar year or the preceding calendar year, paid remuneration in cash of Twenty Thousand Dollars ($20,000.00) or more to individuals employed in agricultural labor; or
(ii) for some portion of a day in each of twenty (20) different calendar weeks, whether or not the weeks were consecutive, in either the calendar year or the preceding calendar year, employed in agricultural labor ten or more individuals, regardless of whether they were employed at the same moment of time.
(b) for the purposes of this paragraph 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:
(i) if the crew leader holds a valid certificate of registration under the Farm Labor Contractor Registration Act of 1963, Public Law 95-562, 29 U.S.C., Sections 1801 through 1872; 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
(ii) if the individual is not an employee of the other person within the meaning of paragraph (1) of this section or subparagraph (d) of this paragraph.
(c) for the purposes of this paragraph, in the case of any 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 subparagraph (b) of this paragraph:
(i) the other person and not the crew leader shall be treated as the employer of the individual; and
(ii) 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 his or her own behalf or on behalf of the other person, for the service in agricultural labor performed for the other person.
(d) for the purposes of this paragraph, the term “crew leader” means an individual who:
(i) furnishes individuals to perform service in agricultural labor for any other person;
(ii) pays, either on his or her own behalf or on behalf of another person, the individuals so furnished by the crew leader for the service in agricultural labor performed by them; and
(iii) has not entered into a written agreement with the other person (farm operator) under which the individual is designated as an employee of the other person.
(6) The term “employment” shall include domestic service 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 ($1,000.00) or more in the calendar year or the preceding calendar year to individuals employed in such domestic service in any calendar quarter.
(7) For the purposes of paragraphs (3) and (4) of this section the term “employment” does not apply to service performed:
(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 or her ministry or by a member of a religious order in the exercise of duties required by the order;
(c) in the employ of a governmental entity referred to in paragraph (3) of this section if the service is performed by an individual in the exercise of duties:
(i) as an elected official;
(ii) as a member of a legislative body, or a member of the judiciary of a state or political subdivision;
(iii) as a member of the State National Guard or Air National Guard;
(iv) as an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency;
(v) in a position which, under or pursuant to the laws of this state, is designated as a major nontenured policymaking or advisory position, or a policymaking or advisory position the performance of the duties of which ordinarily does not require more than eight (8) hours per week;
(vi) as an election official or election worker if the amount of remuneration received by the individual during the calendar year for services as an election official or election worker is less than One Thousand Dollars ($1,000.00);
(d) by an individual receiving rehabilitation or remunerative work while participating or enrolled in a program in a facility that:
(i) conducts a program of rehabilitation for individuals whose earning capacity is impaired by age, physical or mental deficiency, or injury; or
(ii) conducts a program that provides remunerative work for individuals who, because of their impaired mental or physical capacity cannot be readily absorbed into the competitive labor market;
(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; or
(f) by an inmate of a custodial or penal institution.
(8) The term “employment” shall include the service of an individual who is a citizen of the United States, performed outside the United States, except in Canada, in the employ of an American employer other than service which is deemed “employment” under the provisions of paragraphs (11) or (12) of this section or the parallel provisions of another state’s law, if:
(a) the employer’s principal place of business in the United States is located in this state;
(b) the employer has no place of business in the United States, but:
(i) the employer is an individual who is a resident of this state;
(ii) the employer is a corporation which is organized under the laws of this state; or
(iii) the employer is a 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 other state;
(c) none of the criteria of subparagraphs (a) and (b) of this paragraph are 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;
(d) an “American employer”, for purposes of this subsection, means a person who is:
(i) an individual who is a resident of the United States;
(ii) a partnership if two-thirds or more of the partners are residents of the United States;
(iii) a trust, if all of the trustees are residents of the United States; or
(iv) a corporation organized under the laws of the United States or of any state; and
(e) the term “United States”, for the purposes of this subsection, includes the states, the District of Columbia, the Commonwealth of Puerto Rico and the Virgin Islands.
(9) Notwithstanding paragraph (11) of this section, all service performed by an officer or member of the crew of an American vessel on or in connection with the vessel, if the operating office, from which the operations of the vessel operating on navigable waters within, or within and without, the United States are ordinarily and regularly supervised, managed, directed and controlled is within this state.
(10) Notwithstanding any other provisions of the Employment Security Act of 1980, “employment”:
(a) includes any service with respect to which a tax is required to be paid under any federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund; and
(b) includes any service which is required to be “employment” for full tax credit to be allowed against the tax imposed by the Federal Unemployment Tax Act of 1954, Public Law 591, Chapter 736, as amended, 26 U.S.C., Section 3301 et seq.
(11) The term “employment” shall include an individual’s entire service, performed within or both within and without this state if:
(a) the service is localized in this state; or
(b) the service is not localized in any state but some of the service is performed in this state and:
(i) the individual’s base of operations, or, if there is no base of operations, then the place from which the individual’s employment is directed or controlled is in this state; or
(ii) the individual’s base of operations or place from which the 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 this state.
(12) (a) Services covered by an election pursuant to Section 3-203 of this title; and
(b) services covered by an arrangement pursuant to Section 4-701 et seq. of this title between the Oklahoma Employment Security Commission and the agency charged with the administration of any other state or federal unemployment compensation law, pursuant to which all services performed by an individual for an employing unit are deemed to be performed entirely within this state,
shall be deemed to be employment if the Commission has approved an election of the employing unit for whom such services are performed, pursuant to which the entire service of such individual during the period covered by such election is deemed to be insured work.
(13) Service shall be deemed to be localized within a state if:
(a) the service is performed entirely within such state; or
(b) 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; for example, is temporary or transitory in nature or consists of isolated transactions.
(14) Notwithstanding any other provision of this subsection, services performed by an individual for wages or under any contract of hire shall be deemed to be employment subject to the Employment Security Act of 1980 unless and until it is shown to the satisfaction of the Commission that:
(a) such individual has been and will continue to be free from control or direction over the performance of the services, both under the contract of hire and in fact; and
(b) such individual is customarily engaged in an independently established business; or
(c) such service is outside the usual course of the business for which the service is performed and that the service is performed outside of all the places of business of the enterprise for which the service is performed.
(15) The term “employment” shall not include:
(a) services performed by an individual in agricultural labor, except as provided under paragraph (5) of this section. Services performed by an individual who is a nonresident alien admitted to the United States to perform agricultural labor, pursuant to 8 U.S.C. Sections 1101(a), 1184(c) and 1188. For purposes of this subparagraph, the term “agricultural labor” means remunerated service performed in agricultural labor as defined in the Federal Unemployment Tax Act, 26 U.S.C., Section 3306(k);
(b) domestic service, except as provided under paragraph (6) of this section, in a private home, local college club, or local chapter of a college fraternity or sorority;
(c) service performed by an individual in the employ of his or her son, daughter, or spouse, and service performed by a child under the age of twenty-one (21) in the employ of his or her father or mother, or both father and mother;
(d) service performed in the employ of the United States government or an instrumentality of the United States exempt under the Constitution of the United States from the contributions imposed by the Employment Security Act of 1980, 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 law, all of the provisions of the Employment Security Act of 1980 shall be applicable to such instrumentalities, and to services performed for 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; provided that if this state shall not be certified for any year by the Secretary of Labor of the United States under the Federal Internal Revenue Code, 26 U.S.C., Section 3304(c), the payments required of such instrumentalities with respect to the year shall be refunded by the Commission from the fund in the same manner and within the same period as is provided in Section 3-304 of this title with respect to contributions erroneously collected;
(e) service with respect to which unemployment compensation is payable under an unemployment compensation system established by an act of Congress;
(f) service performed in the employ of a foreign government, including service as a consul or other officer or employee or a nondiplomatic representative;
(g) service performed in the employ of an instrumentality wholly owned by a foreign government:
(i) if the service is of a character similar to that performed in foreign countries by employees of the United States government or of an instrumentality thereof, and
(ii) if the Commission finds that the United States Secretary of State has certified to the United States Secretary of the Treasury that the foreign government, with respect to whose instrumentality exemption is claimed, grants an equivalent exemption with resp