REGULATIONS

Admin. Code §4141-3-05 - Definition of employment.

 

(A) Except as specifically provided in sections 4141.01(B)(2)(K) and 41411.39 of the Revised Code, a worker is in employment when an "employer-employee" relationship exists between the worker and the person for whom the individual performs services and the director determines that:

(1) The person for whom services are performed has the right to direct or control the performance of such services; and
(2) Remuneration is received by the worker for services performed.

 

(B) As an aid to determining whether there is sufficient direction or control present, the common law rules identify twenty factors or elements. When present, each of these factors serves to indicate some degree of direction or control. The degree of importance of each factor varies depending on the occupation and the factual context in which the services are performed.  The twenty factors set forth below are designed only as guides for determining whether sufficient direction or control exists and must be considered in totality:

 

(1) The worker is required to comply with the instructions of the person for whom services are being performed, regarding when, where, and how the worker is to perform the services;

 

(2) The person for whom services are being performed requires particular training for the worker performing services;

 

(3) The services provided are part of the regular business of the person for whom services are being performed;

 

(4) The person for whom services are being performed requires that services be provided by a particular worker;

 

(5) The person for whom services are being performed are being performed hires, supervises or pays the wages of the worker performing services;

 

(6) A continuing relationship exists between the person for whom services are being performed and the worker performing services which contemplates continuing or recurring work, even if not full time;

 

(7) The person for whom services are being performed requires set hours during which services are to be performed;

 

(8) The person for whom services are being performed requires the worker to devote himself or herself full time to the business of the person for whom services are being performed;

 

(9) The person for whom services are being performed requires that work be performed on its premises;

 

(10) The person for whom services are being performed requires that the worker follow the order of work set by the person for whom services are being performed;

 

(11) The person for whom services are being performed requires the worker to make oral or written progress reports;

 

(12) The person for whom services are being performed pays the worker on a regular basis such as hourly, weekly, or monthly;

 

(13) The person for whom services are being performed pays expenses for the worker performing services;

 

(14) The person for whom services are being performed furnishes tools. Instrumentalities, and other materials for use by the worker in performing services;

 

(15) There is a lack of investment by the worker in the facilities used to perform services;

 

(16) There is lack of profit or loss to the worker performing services as a result of the performance of such services;

 

(17) The worker performing services is not performing services for a number of persons at the same time;

 

(18) The worker performing services does not make such services available to the general public;

 

(19) The person for whom services are being performed has a right to discharge the worker performing services;

 

(20) The worker performing services has the right to end the relationship with the person for whom services are being performed without incurring liability pursuant to an employment contract or agreement.

 

The director shall make a determination, based on the factors listed in this rule as to whether or not an employment relationship exists purposes of Chapter 4141 of the Revised Code.

OKLAHOMA
LAW

O.S. §40-1-210 "Employment" means: (1)               Any service, including service in interstate commerce, performed by:   (b) any individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an employee. OS - §40-1-208A

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.  [In these sections, a "lessor" is the "party granting the use of equipment, with or without driver, to another."]

OREGON
LAW  657.030 Employment generally; educational, hospital, nursing, student service exclusions. (1) As used in this chapter, unless the context requires otherwise, and subject to ORS 657.035, 657.040 and 657.045 to 657.094, or any other section which excludes services from the term "employment," "employment" means service for an employer, including service in interstate commerce, within or outside of the United States, performed for remuneration or under any contract of hire, written or oral, express or implied.  

657.040 Employment; when service for pay excluded. (1) Services performed by an individual for remuneration are deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the Director of the Employment Department that:

(a) Such individual is an independent contractor, as that term is defined in ORS 670.600; or (b) Such individual has been and will continue to be free from control or direction over the performance of such services, both under a contract of service and in fact; and (c) Such individual customarily is engaged in an independently established business of the same nature as that involved in the contract of service.670.600 Independent contractor; standards. As used in various provisions of ORS chapters 316, 448, 656, 657, 671 and 701, an individual or business entity that performs labor or services for remuneration shall be considered to perform the labor or services as an "independent contractor" if the standards of this section are met: (1) The individual or business entity providing the labor or services is free from direction and control over the means and manner of providing the labor or services, subject only to the right of the person for whom the labor or services are provided to specify the desired results; (2) The individual or business entity providing labor or services is responsible for obtaining all assumed business registrations or professional occupation licenses required by state law or local government ordinances for the individual or business entity to conduct the business; (3) The individual or business entity providing labor or services furnishes the tools or equipment necessary for performance of the contracted labor or services; (4) The individual or business entity providing labor or services has the authority to hire and fire employees to perform the labor or services; (5) Payment for the labor or services is made upon completion of the performance of specific portions of the project or is made on the basis of an annual or periodic retainer; (6) The individual or business entity providing labor or services is licensed under ORS chapter 701, if the individual or business entity provides labor or services for which licensure is required; (7) Federal and state income tax returns in the name of the business or a business Schedule C or farm Schedule F as part of the personal income tax return were filed for the previous year if the individual or business entity performed labor or services as an independent contractor in the previous year; and (8) The individual or business entity represents to the public that the labor or services are to be provided by an independently established business. Except when an individual or business entity files a Schedule F as part of the personal income tax returns and the individual or business entity performs farm labor or services that are reportable on Schedule C, an individual or business entity is considered to be engaged in an independently established business when four or more of the following circumstances exist: (a) The labor or services are primarily carried out at a location that is separate from the residence of an individual who performs the labor or services, or are primarily carried out in a specific portion of the residence, which portion is set aside as the location of the business; (b) Commercial advertising or business cards as is customary in operating similar businesses are purchased for the business, or the individual or business entity has a trade association membership; (c) Telephone listing and service are used for the business that is separate from the personal residence listing and service used by an individual who performs the labor or services; (d) Labor or services are performed only pursuant to written contracts; (e) Labor or services are performed for two or more different persons within a period of one year; or (f) The individual or business entity assumes financial responsibility for defective workmanship or for service not provided as evidenced by the ownership of performance bonds, warranties, errors and omission insurance or liability insurance relating to the labor or services to be provided.

 

PENNSYLVANIA
LAW

43 P.S. §753

*   *   *   *   *

(l) (1) "Employment' means all personal service performed for remuneration by an individual under any contract of hire, express or implied, written or oral, including service in interstate commerce, and service as an officer of a corporation.

Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that-(a) such individual has been and will continue to be free from control or direction over the performance of such services both under his contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business.   COURT DECISIONS  

Newspaper carriers were not employees.

Venango Newspapers v. Unempl. Comp. Bd of Rev., 631 A.2d 1384 (Pa. Commw. 1993).York Newspapers Co. v. Unempl. Comp. Bd. of Rev., 635 A.2d 251 (Pa. Commw. 1993).Johnson v. Workmen's Comp. App. Bd., 631 A.2d 693 (Pa. Commw. 1993).

 

RHODE ISLAND|
LAW  

Rhode Island Gen. Laws

   § 28-42-3  Definitions. - The following words and phrases, as used in chapters 42 - 44 of this title, have the following meanings unless the context clearly requires otherwise: *   *   *   *   * (17) "Employment", subject to §§ 28-42-4 - 28-42-10, means service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied;§ 28-42-7  Independent contractor and employee distinguished. - The determination of independent contractor or employee status for purposes of chapters 42 - 44 of this title shall be the same as those factors used by the Internal Revenue Service in its code and regulations.

 

SOUTH CAROLINA
LAW

South Carolina Code

  Chapter 29 - Employment Security - Employment Security Commission Section 41-27-230. Employment "Employment" means: (1) Any service performed prior to January 1, 1978, which was employment as defined in this subsection prior to such date and, subject to the other provisions of this subsection, service performed after December 31, 1977, for wages under a contract of hire, written or oral, expressed or implied, including service in interstate commerce by: *   *   *   *   * (b) Any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee;

 

SOUTH DAKOTA
LAW   South Dakota Codified Laws  

61-1-10.            Employment generally subject to coverage — Corporate officers and interstate commerce included.  "Employment" means any service performed prior to January 1, 1972, which was employment as defined in this section prior to such date and, subject to the provisions of §§  61-1-10.2 to 61-1-10.9, inclusive, service performed after December 31, 1971, including service in interstate commerce, by:

*   *   *   *   * (2)      Any individual who, under the usual common-law rules applicable in determining the employer-employee relationship has the status of an employee.

61-1-11.   Employee and independent contractor distinguished. Service performed by an individual for wages is employment subject to this title unless and until it is shown to the satisfaction of the Department of Labor that:

             (1)      The individual has been and will continue to be free from control or direction over the performance of the service, both under his contract of service and in fact; and

             (2)      The individual is customarily engaged in an independently established trade, occupation, profession, or business.

 

TENNESSEE
LAW

Tenn. Code Ann. §50-7-207 - Definitions (a)           Definition of "Employment." For purposes of this chapter and subject to the special rules contained in subsection (e), and the definitions contained in subsection (f), "employment" means service that meets all of the following conditions: (1)      It is within any category of "included service" as listed in subsection (b); ***** (b)           "Included Service." For purposes of this section, "included service" means any of the following: ***** (2) Subject to the other provisions of this section, service performed after December 31, 1977, including service in interstate commerce, by: ***** (B)      Any individual who, under the usual common-law rules applicable in determining the employer/employee relationship, has the status of an employee; and ***** (e)  Special Rules. The following rules shall govern for purposes of this section: (1)   Service performed by an individual shall be deemed to be included service for purposes of this section irrespective of whether the common law relationship of master and servant exists, unless and until it is shown to the satisfaction of the administrator that: (A) Such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under any contract for the performance of service and in fact; (B)  Such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and   (C) Such individual is customarily engaged in an independently   established trade, occupation, profession or business of the same nature as that involved in the service performed.

 

TEXAS
LAW

 

Texas Labor Code

  Title 4 - Employment Services and Unemployment Chapter 201 - Unemployment Compensation Act - General Provisions Section  201.041 - General Definition of Employment In this subtitle, "employment" means a service, including service in interstate commerce, performed by an individual for wages or under an express or implied contract of hire, unless it is shown to the satisfaction of the commission that the individual's performance of the service has been and will continue to be free from control or direction under the contract and in fact.

 

UTAH
LAW

Utah Laws

 

Title  35A - Utah Workforce Services Code

Chapter 4 - Employment Security Act Section 35A-4-204 -  Definition of employment     (1) Subject to the other provisions of this section, "employment" means any service performed for wages or under any contract of hire, whether written or oral, express or implied, including service in interstate commerce, and service as an officer of a corporation.

*****      (3) Services performed by an individual for wages or under any contract of hire, written or oral, express or implied, are considered to be employment subject to this chapter, unless it is shown to the satisfaction of the division that:      (a) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the contract of hire for services; and      (b) the individual has been and will continue to be free from control or direction over the means of performance of those services, both under the individual's contract of hire and in fact.      (4) If an employer, consistent with a prior declaratory ruling or other formal determination by the division, has treated an individual as independently established and it is later determined that the individual is in fact an employee, the department may by rule provide for waiver of the employer's retroactive liability for contributions with respect to wages paid to the individual prior to the date of the division's later determination, except to the extent the individual has filed a claim for benefits.

REGULATIONS

R994-204-301. Independent Contractor—General Definition.

In order for a personal service to be excluded under Section 35A-4-204(3) of the Act, the service must be performed by an individual who is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as the services performed, and the individual providing the services must be free from the control and direction of the employer with respect to that service. Those individuals who wish to be classified as independent contractors must clearly establish their status as independent contractors by taking affirmative steps that indicate an informed business decision has been made.

R994-204-302.  Procedure.

(1)               Section 35A-4-204(3) of the Act requires the employer to establish the excluded nature of the services "to the satisfaction of the Division".

(2)         If the issue of an individual's status arises out of a claim for benefits, and there has been no prior status determination or declaratory order, a determination will be made on the basis of the best information available.

(3)         If the issue of the status of an individual or class of workers arises out of an audit or request for declaratory order and there is no claim for benefits, the Department shall determine the status on the basis of the information presented by the employer, the individual, or such other information as the Department may gather through audit or investigation. An individual who is found to be an independent contractor by reason of an audit or declaratory order is not permitted to waive any right to unemployment benefits by filing a written consent to the determination pursuant to Section 63-46b-21(3)(b) while the service relationship with the employer continues. Such written consent is in violation of Section 35A-4-103(1)(c)(ii) of the Employment Security Act.

(4)     If the issue of an individual's status arises out of a claim for benefits and there has been a prior audit determination or declaratory order determining that the individual or class of workers to which the individual belongs to be independent contractors, the Department will issue a monetary determination excluding the claimant's earnings as an independent contractor. The claimant has ten (10) days to protest the determination.

R994-204-303.  Factors for Determining Independent Contractor Status.

(1)              Services will be excluded under Section 35A-4-312 if the service arrangement meets the requirements of that section of the Act and this rule. Special scrutiny of the facts is required to assure that the form of a service arrangement does not obscure the substance of the arrangement; that is, whether the individual is independently established in a like trade, occupation, profession or business and is free from control and direction. The factors listed in subsections 303(2)b) and 303(3)(b) of this section are exclusive, but are intended only as aids in the analysis of the facts of each case. The degree of importance of each factor varies depending on the occupation and the factual context in which the service is performed. Some factors do not apply to certain occupations and, therefore, should not be given any weight.

(2)      Independently Established.

(a)       An individual will be considered customarily engaged in an independently established trade, occupation, profession, or business if the individual is, at the time the service is performed, regularly engaged in a trade, occupation, profession, or business of the same nature as the service performed, and the trade, occupation, profession, or business is established independently of the alleged employer. In other words, an independently established trade, occupation, profession, or business is created and exists apart from a relationship with a particular employer and does not depend on a relationship with any one employer for its continued existence.

(b)       The following factors, if applicable, will be used as aids in determining whether an individual is customarily engaged in an independently established trade or business:

(i)     Separate Place of Business. The individual has his own place of business separate from that of the employer.

(ii)   Tools and Equipment. The individual has a substantial investment in the tools, equipment, or facilities customarily required to perform the services. "Tools of the trade" such as those used by carpenters, mechanics, and other trades or crafts, do not necessarily demonstrate independence.

(iii) Other Clients. The individual regularly performs services of the same nature for other customers or clients and is not required to work full time for the employer.

(iv)  PROFIT OR LOSS. The individual is in a position to realize a profit or loss through his independently established business activity.
(v)   Advertising. The individual advertises his services in telephone directories, newspapers, magazines, or by other methods clearly demonstrating that he holds himself out to the public to perform the services.
(vi) Licenses. The individual has obtained any required and customary business and trade or professional licenses.
(vii) Business Tax Forms. The individual files self-employment and other business tax forms required by the Internal Revenue Service and other tax agencies.
(c)       If an employer proves to the satisfaction of the department that the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as the service in question, there will be a rebuttable presumption that the employer did not have the right of or exercise direction or control over the service.
(3) Control and Direction.
(a) When an employer retains the right to control and direct the performance of a service, or actually exercises control and direction over the individual who performs the service, not only as to the result to be accomplished by the work but also as to the manner and means by which that result is to be accomplished, the individual is an employee of the employer for the purposes of the Act.
(b) The following factors, if applicable, will be used as aids in determining whether an employer has the right of or exercises control and direction over the service of an individual:
(i) Instructions. An individual who is required to comply with other persons' instructions about how the service is to be performed is ordinarily an employee. This factor is present if the employer for whom the service is performed has the right to require compliance with the instructions.
(ii) Training. Training an individual by requiring an experienced person to work with the individual, by corresponding with the individual, by requiring the individual to attend meetings, or by using other methods, indicates that the employer for whom the service is performed expects the service to be performed in a particular method or manner.
(iii) Pace or Sequence. A requirement that the service must be provided at a pace or ordered sequence of duties imposed by the employer indicates control or direction, but the coordinating and scheduling of the services of more than one service provider does not.
(iv) Work on Employer's Premises. A requirement that the service be performed on the employer's premises generally indicates that the employer for whom the service is performed has retained a right to supervise and oversee the manner in which the service is performed, especially if the service could be performed elsewhere.
(v) Personal Service. A requirement that the service must be performed personally and may not be assigned to others generally indicates the right to control or direct the manner in which the work is performed.
(vi) Continuous Relationship. A continuous service relationship between the individual and the employer indicates that an employer-employee relationship exists. A continuous relationship may exist where work is performed regularly or at frequently recurring although irregular intervals. A continuous relationship generally does not exist where the individual is contracted to complete specifically identified projects, even though the service relationship may extend over a significant period of time.
(vii) Set Hours of Work. The establishment of set hours of work by the employer, or a requirement that the individual must work full-time, indicates control.

(viii) Method of Payment. Payment by the hour, week, or month generally points to an employer-employee relationship, provided that this method of payment is not just a convenient way of paying progress billings as part of a fixed price agreed upon as the cost of a job.

R994-204-401. Safe Haven — General Definition.

The Administrative Procedures Act, Section 63-46B-21, permits any person to request that the Department issue a declaratory order determining the applicability of the Employment Security Act, a Commission rule, or order, to specific circumstances. Specifically, an employer may request a declaratory order determining the status of workers; that is, are they employees or independent contractors. Declaratory orders and audit findings determine only whether the employer is liable to pay contributions on wages paid to the workers in question. The "safe haven" provision provides a means by which the employer may rely on official determination of the Department pertaining to the applicability of Section 35A-4-204(3) of the Act. The provision allows the employer to obtain an official determination for contributions purposes, while preserving the worker's right to challenge that determination at a more appropriate time, when the work relationship has ended and a claim for benefits has been filed.

R994-204-402. Procedure.

(1)   If the issue of the status of an individual or class of workers arises out of an audit or request for declaratory order and there is no claim for benefits pending at the time, the Department shall determine the status on the basis of the information presented by the employer, the individual, or such other information as the Department may gather through audit or investigation.

(2)   (2) An individual whose status is determined as a result of an audit or declaratory order shall not be permitted to file a written consent to the determination pursuant to Section 63-46B-21(3)(b) while the service relationship with the employer continues, and the Department will consider such a consent to be in violation of Section 35A-4-103(1)(c)(ii) of the Employment Security Act.

(3)   (3)(i) If the issue of an individual's status arises out of a claim for benefits and there has been a prior audit determination or declaratory order determining the status of the individual or a class of workers to which the individual belonged, the Department will issue a notice as part of the monetary determination, denying use of the individual's independent contractor earnings as wage credits for the base period, on the basis of the prior status determination. The individual may file a written protest of the determination within 10 days after the local office has notified him of the determination. Any protest will be referred to Central Office Claims for review.

(ii) Upon receipt of a protest filed under Section 402(3)(i), the Department will review the status of the individual. On the basis of its review, the Department may affirm the original determination or issue a new determination if there has been a change of facts in the work relationship. Either the individual or the employer may appeal the Department's decision.

R994-204-403. Employer Reliance on Official Determination.

When an employer receives a declaratory order or other official determination concluding that a worker or class of workers appears to be customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the contract of hire, and is free from the control and direction of the employer, the employer shall have no liability to pay unemployment contributions on compensation paid to the worker, except as provided in Section 404 of this rule.

R994-204-404. Effect of New Determination on Employer.

If a new determination by the Department, an Administrative Law Judge, or the Workforce Appeals Board holds that the status of an individual or class of workers to which the individual belonged is that of employee for purposes of the Employment Security Act, the employer shall be liable to pay unemployment contributions on all wages paid to workers in the class to which the individual belonged, from the beginning of the calendar quarter in which the new determination is made. In addition, the employer shall also be liable to pay contributions on any wages used by a claimant for purposes of establishing any claim for benefits affected by the new determination.   

VERMONT
LAW

Vermont Statutes

  Title 211 - Labor Chapter 17 - Unemployment Compensation Section 1301 - Definitions  (6)(A) "Employment," subject to the other provisions of this subdivision (6), means service within the jurisdiction of this state, performed prior to January 1, 1978, which was employment as defined in this subdivision prior to such date and, subject to the other provisions of this subdivision, service performed after December 31, 1977, by an employee, as defined in subsections (i) and (o) of section 3306 of the Federal Unemployment Tax Act, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, expressed or implied. (B) Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the commissioner that: (i) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and (ii) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and

(iii) Such individual is customarily engaged in an independently established trade, occupation, profession or business.

 

VIRGINIA
LAW  

Virginia Code

§ 60.2-212 - Employment

A. "Employment" means: 1. Any service including service in interstate commerce, performed for remuneration or under any contract of hire, written or oral, express or implied; and C. Services performed by an individual for remuneration shall be deemed to be employment subject to this title unless: 1. Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and 2. Such service is either outside the usual course of the business for which such service is performed, or such service is performed outside of all the places of business of the enterprise for which such service is performed; or such individual, in the performance of such service, is engaged in an independently established trade, occupation, profession or business. § 60.2-212.1. Employment; special exclusion. A. In the trucking industry, an owner-operator or lessee of a vehicle which is licensed and registered as a truck, tractor, or truck-tractor by a governmental motor vehicle regulatory agency is an independent contractor, not an employee, while performing services in the operation of his truck, if each of the following factors is substantially present: 1. The individual owns the equipment or holds it under a bona fide lease arrangement; 2. The individual is responsible for the maintenance of the equipment; 3. The individual bears the principal burdens of the operating costs, including fuel, repairs, supplies, vehicle insurance, and personal expenses while on the road; 4. The individual is responsible for supplying the necessary personal services to operate the equipment; 5. The individual's compensation is based on factors related to the work performed including a percentage of any schedule of rates or lawfully published tariff and not on the basis of the hours or time expended; 6. The individual generally determines the details and means of performing the services, in conformance with regulatory requirements, operating procedures of the carrier and specifications of the shipper; and 7. The individual enters into a contract that specifies the relationship to be that of an independent contractor and not that of an employee. § 60.2-219. Services not included in term "employment." The term "employment" shall not include: ***** 22. Services performed by an individual as a "contract carrier courier driver" provided the Commission is furnished evidence that such individual is excluded from taxation by the Federal Unemployment Tax Act; COURT DECISIONS  

Central Delivery Svc. of Washington, Inc. v. Va. Empl. Comm'n, 2001 WL 1356507 (Va. App. 2001): Courier drivers were independent contractors, because company provided evidence that IRS had audited treatment of couriers and made no change.

WASHINGTON
LAW

  R.C.W. §50.04.100 - Employment  "Employment", subject only to the other provisions of this title, means personal service, of whatever nature, unlimited by the relationship of master and servant as known to the common law or any other legal relationship, including service in interstate commerce, performed for wages or under any contract calling for the performance of personal services, written or oral, express or implied.

WEST VIRGINIA
LAW   W. Va. Code §21A-1A-16   "Employment", subject to the other provisions of this article, means:  (1) Service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied;  (2) Any service performed by an employee, as defined in Section 3306(i) of the federal Unemployment Tax Act [common law rule], including service in interstate commerce; ***** (7) Services performed by an individual for wages are employment subject to this chapter unless and until it is shown to the satisfaction of the commissioner that: (A)   The individual has been and will continue to be free from control or direction over the performance of the services, both under his or her contract of service and in fact; and (B)    the service is either outside the usual course of the business for which the service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and (C) the individual is customarily engaged in an independently established trade, occupation, profession or business;

 

WISCONSIN
LAW Wisconsin Statutes  

Chapter 108 - Unemployment Insurance and Reserves

Section 108-02 - Definitions

  *   *   *   *   *  

12) Employee. 

 (a)  "Employee" means any individual who is or has been performing services for an employing unit, in an employment, whether or not the individual is paid directly by such employing unit; except as provided in par. (b), (bm), (c) or (d).
 
 (b)  During the period beginning on January 1, 1996, and ending on December 31, 1999, and during the period beginning on January 1, 2004, with respect to contribution requirements, and during the period beginning on January 1, 1996, and ending on April 1, 2000, and during the period beginning on April 4, 2004, with respect to benefit eligibility, par. (a) does not apply to an individual performing services for an employing unit other than a government unit or nonprofit organization in a capacity other than as a logger or trucker, if the employing unit satisfies the department that:
 
1.  The individual:
 
a.  Holds or has applied for an employer identification number with the federal internal revenue service; or
 
b.  Has filed business or self-employment income tax returns with the federal internal revenue service based on such services in the previous year; and
 
2.  The individual meets 6 or more of the following conditions:
 
a.  The individual maintains a separate business with his or her own office, equipment, materials and other facilities.
 
b.  The individual operates under contracts to perform specific services for specific amounts of money and under which the individual controls the means and method of performing the services.
 
c.  The individual incurs the main expenses related to the services that he or she performs under contract.
 
d.  The individual is responsible for the satisfactory completion of the services that he or she contracts to perform and is liable for a failure to satisfactorily complete the services.
 
e.  The individual receives compensation for services performed under a contract on a commission or per-job or competitive-bid basis and not on any other basis.
 
f.  The individual may realize a profit or suffer a loss under contracts to perform services.
 
g.  The individual has recurring business liabilities or obligations.
 
h.  The success or failure of the individual's business depends on the relationship of business receipts to expenditures.
 
 (bm)  During the 4-year period beginning on January 1, 2000, with respect to contribution requirements, and during the period beginning on April 2, 2000, and ending on April 3, 2004, with respect to benefit eligibility, par. (a) does not apply to an individual performing services for an employing unit other than a government unit or nonprofit organization in a capacity other than as a logger or trucker, if the employing unit satisfies the department that the individual meets 7 or more of the following conditions by contract and in fact:
 
1.  The individual holds or has applied for an identification number with the federal internal revenue service.
 
2.  The individual has filed business or self-employment income tax returns with the federal internal revenue service based on such services in the previous year or, in the case of a new business, in the year in which such services were first performed.
 
3.  The individual maintains a separate business with his or her own office, equipment, materials and other facilities.
 
4.  The individual operates under contracts to perform specific services for specific amounts of money and under which the individual controls the means and methods of performing such services.
 
5.  The individual incurs the main expenses related to the services that he or she performs under contract.
 
6.  The individual is responsible for the satisfactory completion of the services that he or she contracts to perform and is liable for a failure to satisfactorily complete the services.
 
7.  The individual receives compensation for services performed under a contract on a commission or per-job or competitive-bid basis and not on any other basis.
 
8.  The individual may realize a profit or suffer a loss under contracts to perform such services.

9.  The individual has recurring business liabilities or obligations.
10.  The success or failure of the individual's business depends on the relationship of business receipts to expenditures.
 
 (c)  Paragraph (a) does not apply to an individual performing services for a government unit or nonprofit organization, or for any other employing unit in a capacity as a logger or trucker if the employing unit satisfies the department:
 
1.  That such individual has been and will continue to be free from the employing unit's control or direction over the performance of his or her services both under his or her contract and in fact; .   *   *   *   *   *

(15) Employment. 

(a)  "Employment", subject to the other provisions of this subsection means any service, including service in interstate commerce, performed by an individual for pay.

WYOMING
LAW

  Wyoming Statutes  § 27.3-104.  "Employment" defined; generally; exceptions. (a)  As used in this act, "employment" means service: (i)  Performed by an employee defined under 26 U.S.C. § 3306(i) including service in interstate commerce, except 26 U.S.C. § 3121(d)(2) does not apply; (b)  An individual who performs service for wages is an employee for purposes of this act unless it is shown that the individual: (i)  Is free from control or direction over the details of the performance of services by contract and by fact; (ii)  Repealed by Laws 1991, ch. 153, § 1. (iii)  Repealed by Laws 1995, ch. 121, § 3. (iv)  Repealed by Laws 1995, ch. 121, § 3. (v)  Represents his services to the public as a self‑employed individual or an independent contractor; and

(vi)  May substitute another individual to perform his services.