Section 22-4-8-3 - Services not included; determination of status "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 that 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 the Act of Congress which agreements shall become effective ten (10) days after publication, 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 the Act of Congress, or who have, after having acquired potential rights to unemployment compensation under the 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 a 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 the 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 the operator produced more than one-half (1/2) of the commodity with respect to which the 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 the operators produce more than one-half (1/2) of the commodity with respect to which the 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 the 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 the 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 the service is fifty dollars ($50) or more and the service is performed by an individual who is regularly employed by the employing unit to perform the 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 the quarter that the individual performs the service for some portion of the day; or(B) the individual was regularly employed (as determined under clause (A)) by an employing unit in the performance of a 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 the service is less than fifty dollars ($50).(10) Service performed in the employ of a hospital, if the service is performed by a patient of the 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 a student, if the spouse is advised, at the time the spouse commences to perform the service, that:(i) the employment of the spouse to perform the service is provided under a program to provide financial assistance to the student by the school or eligible postsecondary educational institution; and(ii) the 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 the institution, which combines academic instruction with work experience, if the service is an integral part of the program, and the 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 of the United States of America, and if the department 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 of the United States.(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 service performed by the 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 the 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 the 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 to the extent the services are excluded from employment under 26 CFR 31.3306(c)(16).(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 the individual for the period shall be deemed to be employment; but if the services performed during more than one-half (1/2) of any pay period by an individual do not constitute employment, then none of the services of the individual for the period shall be deemed to be employment. As used in this subdivision, "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 subdivision shall not be applicable with respect to services performed in a pay period by any individual where any 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).(23) Services performed by a direct seller: (A) in the trade or business of: (i) selling, or soliciting the sale of, consumer products or services to any buyer on a buy-sell basis, deposit-commission basis, or similar basis, in any place other than in a permanent retail establishment; or(ii) selling, or soliciting the sale of, consumer products or services in any place other than in a permanent retail establishment;(B) when substantially all the remuneration, whether or not paid in cash, for the performance of the services is directly related to sales or other output, including performance of services, rather than the number of hours worked; and(C) when the services performed by the person are performed pursuant to a written contract and the contract provides that the person who performs the services will not be treated as an employee for tax purposes under the contract.Amended by P.L. 211-2019,SEC. 28, eff. 7/1/2019.Amended by P.L. 122-2019,SEC. 17, eff. 7/1/2019.Amended by P.L. 7-2019,SEC. 2, eff. 7/1/2019.Amended by P.L. 171-2016, SEC. 5, eff. 3/23/2016.(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; Acts1971 , P.L. 355, SEC.15.) As amended by Acts1977 , 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.