Services not included; determination of status
Sec. 3. "Employment" shall not include the following:
(a) 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.
(b) Service with respect to which unemployment compensation is
payable under an unemployment compensation system established by
an Act of Congress; however, the board 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 the manner provided in IC 22-4-19-2 for rules
of the board, 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.
(c) "Agricultural labor" as provided in section 2(l)(1) of this
chapter shall include only services performed:
(i) 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;
(ii) 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;
(iii) in connection with the production or harvesting of any
commodity defined as an agricultural commodity in Section
15(g) of the Agricultural Marketing Act, 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;
(iv)(A) in the employ of 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;
(B) in the employ of a group of operators of farms (or a
cooperative organization of which such operators are members)
in the performance of service described in subdivision (A), but
only if such operators produce more than one-half (1/2) of the
commodity with respect to which such service is performed;
(C) the provisions of subdivisions (A) and (B) 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
(v) 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.
As used in this subsection, "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.
(d) 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.
(e) 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.
(f) 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.
(g) 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 subsection, 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:
(i) on each of some of twenty-four (24) days during such quarter
such individual performs such service for some portion of the
day; or
(ii) such individual was regularly employed (as determined
under clause (i)) by such employing unit in the performance of
such service during the preceding calendar quarter.
(h) 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).
(i) Service performed in the employ of a hospital, if such service
is performed by a patient of such hospital.
(j) Service performed in the employ of a school, college, or
university if such service is performed:
(i) by a student who is enrolled and is regularly attending
classes at such school, college, or university; or
(ii) by the spouse of such a student, if such spouse is advised,
at the time such spouse commences to perform such service,
that:
(A) the employment of such spouse to perform such service
is provided under a program to provide financial assistance
to such student by such school, college, or university; and
(B) such employment will not be covered by any program of
unemployment insurance.
(k) 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 subsection shall not apply to service
performed in a program established for or on behalf of an employer
or group of employers.
(l) 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.
(m) 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.
(n) 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.
(o) 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.
(p)(A) Service performed by an individual 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.
(B) Services performed by an individual 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 him at a fixed price, his compensation being based on the
retention of the excess of such price over the amount at which the
newspapers or magazines are charged to him, whether or not he is
guaranteed a minimum amount of compensation for such service, or
is entitled to be credited with the unsold newspapers or magazines
turned back.
(q) Service performed in the employ of an international
organization.
(r) 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.
(s) 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 subsection (b).
(t) Service performed by an inmate of a custodial or penal
institution.
(u) 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.
Last modified: May 27, 2006