§40-1-210. Employment.
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/ok/title-40-labor/40-1-210·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
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, as provided in paragraph
(14)of this
section, has the status of an employee.
(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 the individual's
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, an
individual's 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
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
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 the
individual's 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 the individual's 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 or entity who paid cash remuneration of One Thousand Dollars ($1,000.00) or more to individuals employed in domestic service in any calendar quarter in the calendar year or the preceding calendar year.
(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;
(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; or
(iii)an elementary or secondary school which is
operated primarily for religious purposes, which
is described in 26 U.S.C., Section 501(c)(3), and
which is exempt from tax under 26 U.S.C., Section
501(a);
(b)by a duly ordained, commissioned or licensed minister
of a church in the exercise of 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;
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 who is participating or enrolled in a
program of an organization that provides
rehabilitation through work for individuals whose
earning capacity is impaired by age, physical or
mental deficiency, or injury, or a program of an
organization that provides work for individuals who,
because of their impaired mental or physical capacity
cannot be readily absorbed into the competitive labor
market; provided that the services are performed by a
program participant on real property owned or leased
directly by the organization or by a program
participant working under a special certificate issued
by the U.S. Secretary of Labor pursuant to 29 U.S.C.,
Section 214(c) and 29 C.F.R., Section 525.1 et seq.;
(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 or of an Indian tribe,
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 paragraph
(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;
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 laws 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 (2/3) 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.
(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 shall be deemed to be employment subject to the Employment Security Act of 1980 if the services are performed by the individual in an employer-employee relationship with the employer using the 20-factor test used by the Internal Revenue Service of the United States Department of Treasury in Revenue Ruling 87-41, 1987-1 C.B. 296. The Oklahoma Employment Security Commission shall have the exclusive authority to make a
determination of whether an individual is an independent contractor or employee.
(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
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 respect to similar service
performed in the foreign country by employees of
the United States government and of
instrumentalities thereof;
(h)service covered by an arrangement between the
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 during the period covered by such employing
unit's duly approved election, are deemed to be
performed entirely within the jurisdiction of such
other state or federal agency;
(i)service performed as a student nurse in the employ of
a hospital or a 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-year course in a
medical school chartered or approved pursuant to state
law;
(j)service performed by an individual for a person, firm,
association, trust, partnership or corporation as an
insurance agent, or as an insurance solicitor or as a
licensed real estate agent, if all such service
performed by such individual for such person is
performed for remuneration solely by way of
commissions or fees;
(k)service performed by an individual under the age of
eighteen
(18)in the delivery and distribution of
newspapers or shopping news, not including delivery or
distribution to any point for subsequent delivery or
distribution, and services performed by an individual
eighteen
(18)years of age or older who meets the
definition of a "direct seller" as defined in 26
U.S.C., Section 3508(b)(2), that states in pertinent
part:
(i)the individual must be engaged in the delivery or
distribution of newspapers or shopping news,
including any services directly related to such
trade or business,
(ii)substantially all the remuneration, whether or
not paid in cash, for the performance of the
services described in division
(i)of this
subparagraph is directly related to sales or
other output, including the performance of
services, rather than the number of hours worked,
and
(iii)the services performed by the individual are
performed pursuant to a written contract between
the person and the person for whom the services
are performed and the contract provides that the
person will not be treated as an employee with
respect to the services;
(l)service performed in the employ of a school, college
or university, if the service is performed:
(i)by a student who is enrolled and is regularly
attending classes at the school, college, or
university, or
(ii)by the spouse of the 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, college, or university, and
(II)the employment will not be covered by any
program of unemployment insurance;
(m)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 provision shall not
apply to service performed in a program established
for or on behalf of an employer or group of employers;
(n)service performed in the employ of a hospital, if the
service is performed by a patient of the hospital;
(o)services performed by cooperative extension personnel
holding federal appointments employed by state
institutions of higher learning;
(p)earnings of employees being paid by state warrants who
are presently covered by the Federal Unemployment
Compensation Act, 5 U.S.C., Section 8501 et seq., by
virtue of their federal status;
(q)cosmetology services performed by an individual in a
beauty shop, as defined by Section 199.1 of Title 59
of the Oklahoma Statutes, pursuant to an agreement
whereby the owner of the beauty shop leases or rents
facilities for cosmetology to such individual;
(r)barbering services performed by an individual in a
barber shop, as defined by Section 61.5 of Title 59 of
the Oklahoma Statutes, pursuant to an agreement
whereby the owner of the barber shop leases or rents
facilities for barbering to such individual;
(s)services performed as a participant in a work or
training program administered by the Department of
Human Services;
(t)riding services performed by a jockey and services
performed by a trainer of racehorses in preparation
for and during an approved race meeting licensed by
the Oklahoma Horse Racing Commission;
(u)service performed by an individual whose remuneration
consists solely of commissions, overrides, bonuses,
and differentials related to sales or other output
derived from in-person sales to, or solicitation of
orders from, ultimate consumers primarily in the home,
or otherwise than in a permanent retail establishment;
(v)service performed by a person, commonly referred to as
"owner-operator", who owns or leases a truck-tractor
or truck for hire, provided the owner-operator
actually operates the truck-tractor or truck and,
further, that the entity contracting with the owner-
operator is not the lessor of the truck-tractor or
truck;
(w)services performed as a chopper of cotton who weeds or
thins cotton crops by hand or hoe. This subsection
shall be interpreted and applied consistently with the
Federal Unemployment Tax Act, 26 U.S.C., Sections
3304(a)(6)(A) and 3306(k);
(x)services performed for a private for-profit person or
entity by an individual as a landman:
(i)if the individual is engaged primarily in
negotiating for the acquisition or divestiture of
mineral rights or negotiating business agreements
that provide for the exploration for or
development of minerals,
(ii)if substantially all remuneration paid in cash or
otherwise for the performance of the services is
directly related to the completion by the
individual of the specific tasks contracted for
rather than to the number of hours worked by the
individual, and
(iii)if the services performed by the individual are
performed under a written contract between the
individual and the person for whom the services
are performed; provided that the individual is to
be treated as an independent contractor and not
as an employee with respect to the services
provided under the contract; or
(y)services performed by persons working under an
AmeriCorps grant from the Corporation for National
Service made pursuant to the National and Community
Service Act of 1990
(NCSA)codified at 42 U.S.C.,
Section 12501 et seq. Added by Laws 1980, c. 323, § 1-210, eff. July 1, 1980. Amended by Laws 1981, c. 259, § 1, emerg. eff. June 25, 1981; Laws 1982, c. 105, § 1, eff. Oct. 1, 1982; Laws 1982, c. 304, § 2, eff. Oct. 1, 1982; Laws 1984, c. 252, § 1, emerg. eff. May 29, 1984; Laws 1986, c. 205, § 1, emerg. eff. June 6, 1986; Laws 1989, c. 165, § 1, eff. Nov. 1, 1989; Laws 1990, c. 235, § 1, eff. Sept. 1, 1990; Laws 1993, c. 198, § 21, eff. Sept. 1, 1993; Laws 1993, c. 360, § 5, emerg. eff.
June 10, 1993; Laws 1994, c. 195, § 1, emerg. eff. May 16, 1994; Laws 1995, c. 340, § 2, eff. July 1, 1995; Laws 1997, c. 30, § 3, eff. July 1, 1997; Laws 1997, c. 391, § 1, eff. July 1, 1997; Laws 1998, c. 161, § 1, eff. July 1, 1998; Laws 2002, c. 452, § 5, eff. Nov. 1, 2002; Laws 2004, c. 102, § 1, eff. Nov. 1, 2004; Laws 2006, c. 176, § 2, eff. July 1, 2006; Laws 2008, c. 132, § 3, eff. Nov. 1, 2008; Laws 2010, c. 216, § 2, eff. July 1, 2010; Laws 2010, c. 328, § 1, eff. July 1, 2010;
Laws 2011, c. 256, § 1; Laws 2015, c. 249, § 1, eff. Nov. 1, 2015; Laws 2019, c. 342, § 2, eff. Jan. 1, 2020; Laws 2021, c. 424, § 1, eff. Nov. 1, 2021.