Bill Text: MI SB0484 | 2017-2018 | 99th Legislature | Introduced

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Bill Title: Employment security; other; junior ice hockey player; clarify as nonemployee in the employment security act. Amends sec. 43 of 1936 (Ex Sess) PA 1 (MCL 421.43) TIE BAR WITH: SB 0483'17

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2017-06-22 - Referred To Committee On Commerce [SB0484 Detail]

Download: Michigan-2017-SB0484-Introduced.html

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SENATE BILL No. 484

 

 

June 22, 2017, Introduced by Senators SCHMIDT, HORN, STAMAS and ANANICH and referred to the Committee on Commerce.

 

 

     A bill to amend 1936 (Ex Sess) PA 1, entitled

 

"Michigan employment security act,"

 

by amending section 43 (MCL 421.43), as amended by 2014 PA 510.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 43. Except as otherwise provided in section 42(6), the

 

term "employment" does not include any of the following:

 

     (a) Services Service performed by an individual who is an

 

alien admitted to the United States to perform services described

 

in either of the following:

 

     (i) Sections 214(c) and 101(a)(15)(H)(ii)(a) of the

 

immigration and nationality act, 8 USC 1184 and 8 USC

 

1101(a)(15)(H)(ii)(a).

 

     (ii) Beginning January 1, 2014, services described in section

 

101(a)(15)(H)(ii)(b) of the immigration and nationality act, 8 USC

1101(a)(15)(H)(ii)(b), and services described in 22 CFR 62.28 to

 

62.32 that are performed by a holder of a J-1 exchange visitor

 

program visa issued under section 101(a)(15)(J) of the immigration

 

and nationality act, 8 USC 1101(a)(15)(J), and the mutual

 

educational and cultural exchange act of 1961, 22 USC 2451 to 2464.

 

The employer claiming an exclusion under this subparagraph must be

 

the employer of an H-2B visa holder, as documented on an approved

 

I-129 petition or successor form for a nonimmigrant worker, or the

 

employer of the J-1 exchange visitor program visa holder, as

 

documented in the DS-2019 or successor form. The employer shall

 

maintain the supporting documentation for the claim for 6 years

 

and, upon request, provide the unemployment agency with that

 

documentation for compliance and verification purposes. This

 

subparagraph is intended to apply applies retroactively to include

 

the full calendar year.

 

     (b) Service performed in the employ of another state or its

 

political subdivisions, or of an instrumentality of another state

 

or its political subdivisions, except as otherwise provided in

 

section 42(9); and service performed in the employ of the United

 

States government or an instrumentality of the United States exempt

 

under the constitution Constitution of the United States from the

 

contributions imposed by this act. However, to the extent that the

 

congress Congress of the United States permits states to require

 

instrumentalities of the United States to make payments into an

 

unemployment fund under a state unemployment compensation law, this

 

act applies to the instrumentalities and to services performed for

 

the instrumentalities in the same manner, to the same extent, and

on the same terms as to all other employers, employing units,

 

individuals, and services. If this state is not certified for any

 

year by the appropriate agency of the United States under section

 

3304(c) of the federal unemployment tax act, chapter 23 of subtitle

 

C of the internal revenue code of 1986, 26 USC 3304, the

 

unemployment agency shall refund the payments required of the

 

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 provided in section 16 with respect to contributions

 

erroneously collected.

 

     (c) Service with respect to which unemployment compensation is

 

payable under an unemployment compensation system established by an

 

act of congress. Congress. However, the commission unemployment

 

agency shall enter into agreements with the proper agencies under

 

the act of congress, which Congress. The agreements must take

 

effect 10 days after publication of the agreements, in the manner

 

provided in section 4 for regulations, to and provide reciprocal

 

treatment to individuals who have, after acquiring potential rights

 

to benefits under this act, acquired rights to unemployment

 

compensation under the act of congress, Congress, or who have,

 

after acquiring potential rights to unemployment compensation under

 

the act of congress, Congress, acquired rights to benefits under

 

this act.

 

     (d) Agricultural labor. As used in this subdivision,

 

"agricultural labor" includes all of the following:

 

     (i) Service performed on a farm, in the employ of any person,

 

in connection with cultivating the soil, or in connection with

raising or harvesting an agricultural or horticultural commodity,

 

including the raising, shearing, feeding, caring for, training, and

 

management of livestock, bees, poultry, and fur-bearing animals and

 

wildlife.

 

     (ii) Service performed in the employ of the owner, 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.

 

     (iii) Service performed in connection with the production or

 

harvesting of a commodity defined as an agricultural commodity in

 

section 15(g) 15 of the agricultural marketing act, 12 USC 1141j,

 

in connection with the ginning of cotton, or 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) Service performed in the employ of the operator of a farm

 

in handling, planting, drying, packing, packaging, processing,

 

freezing, grading, storing, or delivering to storage, to market, or

 

to a carrier for transportation to market, in its unmanufactured

 

state, an agricultural or horticultural commodity, if the operator

 

produced more than 1/2 of the commodity for which the service is

 

performed.

 

     (v) Service performed in the employ of a group of operators of

 

farms or a cooperative organization of which the operators are

 

members, in the performance of service described in subparagraph

(iv), but only if the operators produced more than 1/2 of the

 

commodity for which the services are performed.

 

     (vi) Service performed on a farm operated for profit if the

 

service is not in the course of the employer's trade or business.

 

     (vii) Subparagraphs (iv) and (v) do not apply to service

 

performed in connection with commercial canning or commercial

 

freezing or in connection with an agricultural or horticultural

 

commodity after its delivery to a terminal market for distribution

 

for consumption.

 

     (viii) As used in this subdivision, "farm" includes stock,

 

dairy, poultry, fruit, and fur-bearing animals , and truck farms,

 

plantations, ranches, nurseries, ranges, and greenhouses, or and

 

other similar structures used primarily for the raising of

 

agricultural or horticultural commodities.

 

     (ix) Agricultural labor is not excluded from the term

 

employment if the labor is performed for an employer as defined in

 

section 41(5).

 

     (e) Domestic service in a private home, local college club, or

 

local chapter of a college fraternity or sorority not operated for

 

profit. Domestic service is not excluded from the term "employment"

 

if performed for an employer as defined in section 41(6).

 

     (f) Service as an officer or member of a crew of an American

 

vessel performed on or in connection with the vessel, except a

 

vessel of less than 200 horsepower, if the operating office from

 

which the operations of the vessel operating on navigable waters

 

within or without the United States are ordinarily and regularly

 

supervised, managed, directed, and controlled is without this

state; and service performed by an individual in or as an officer

 

or member of the crew of a vessel while it is engaged in the

 

catching, taking, or harvesting of any kind of fish including

 

service performed by an individual as an ordinary incident to that

 

activity, except service performed on or in connection with a

 

vessel of more than 10 net tons determined in the manner provided

 

for determining the register tonnage of merchant vessels under the

 

laws of the United States.

 

     (g) Service performed by an individual in the employ of the

 

individual's son, daughter, or spouse, and service performed by a

 

child less than 18 years of age in the employ of the child's

 

parent.

 

     (h) Service performed by real estate salespersons, sales

 

representatives of investment companies, and agents or solicitors

 

of insurance companies who are compensated principally or wholly on

 

a commission basis.

 

     (i) Service performed within this state by an individual who

 

is not a citizen of the United States or service performed within

 

this state for an employer other than an American employer as

 

defined in section 42(12)(d), if the service is incidental to the

 

individual's service in a foreign country in which the base of

 

operation is maintained or from which the service is directed or

 

controlled.

 

     (j) Service covered by an arrangement between the commission

 

unemployment agency and the agency charged with the administration

 

of another state or federal unemployment compensation law under

 

which all service performed by an individual for an employing unit

during the period covered by the employing unit's approved

 

election. Service described in this subdivision is considered to be

 

performed entirely within the agency's state or under federal law.

 

     (k) Service performed by an individual in a calendar quarter

 

in the employ of an organization exempt from income tax under

 

section 501(a) of the internal revenue code of 1986, 26 USC 501,

 

other than an organization described in section 401(a) of the

 

internal revenue code of 1986, 26 USC 401, or under section 521 of

 

the internal revenue code of 1986, 26 USC 521, if the remuneration

 

earned is less than $50.00.

 

     (l) Service performed in the employ of a school, college, or

 

university, if the service is performed by any of the following:

 

     (i) By a A person who is primarily a student at the school,

 

college, or university. For the purpose of this subparagraph, a

 

person is considered to be "primarily a student" if the individual

 

is enrolled in an institution, is pursuing a course of study for

 

academic credit, and while enrolled normally works 30 hours or less

 

per week for the institution.

 

     (ii) By a A spouse of a student, if given written notice at

 

the start of the service that the employment is under a program to

 

provide financial assistance to the student and that the employment

 

will not be covered by a program of unemployment compensation.

 

     (m) Service performed by an individual less than 22 years of

 

age who is enrolled, at a nonprofit or public educational

 

institution that 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 program that combines academic

 

instruction with work experience, if the service is an integral

 

part of the program and the institution has certified that fact to

 

the employer. This subdivision does 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 as defined in

 

section 53(1).53.

 

     (o) For purposes of section 42(8), (9), and (10), "employment"

 

does not apply to service performed in any of the following

 

situations:

 

     (i) In the employ of a church or a convention or association

 

of churches or an organization that is operated primarily for

 

religious purposes and that is operated, supervised, controlled, or

 

principally supported by a church or a convention or association of

 

churches.

 

     (ii) By an ordained, commissioned, or licensed minister of a

 

church in the exercise of the ministry or by a member of a

 

religious order in the exercise of duties required by the order.

 

     (iii) Before January 1, 1978, in the employ of a school that

 

is not an institution of higher education and which service is also

 

excluded from the term "employment" as defined in section

 

3306(c)(8) of the federal unemployment tax act, chapter 23 of the

 

internal revenue code of 1986, 26 USC 3306. After December 31,

 

1977, in the employ of a governmental entity as defined in section

50a, if the service is performed by an individual in any of the

 

following capacities:

 

     (A) As an elected official.

 

     (B) As a member of a legislative body or of the judiciary.

 

     (C) As a military employee of the state national guard or air

 

national guard.

 

     (D) As an employee serving on a temporary basis in case of

 

fire, storm, snow, earthquake, flood, or similar emergency.

 

     (E) In a position that, 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 8

 

hours per week.

 

     (iv) By an individual receiving rehabilitation or remunerative

 

work in a facility conducted for the purpose of carrying out a

 

program of rehabilitation for individuals whose earning capacity is

 

impaired by age, physical or mental deficiency, or injury, or

 

conducted for the purpose of providing remunerative work for

 

individuals who because of their impaired physical or mental

 

capacity cannot be readily absorbed in the competitive labor

 

market.

 

     (v) As part of an unemployment work-relief or work-training

 

program assisted or financed in whole or in part by a federal

 

agency or an agency of a state or political subdivision of a state

 

by an individual receiving the work relief or work training.

 

     (vi) By an inmate of a custodial or penal institution.

 

     (vii) By an individual hired by a state department or

recipient governmental entity through a summer youth employment

 

program established under the Michigan youth corps act, 1983 PA 69,

 

MCL 409.221 to 409.229, or an individual hired by a state

 

department through a summer youth employment program administered

 

by the department of natural resources or the state transportation

 

department. of transportation.

 

     (p) Service performed by an individual less than 18 years of

 

age in the delivery or distribution of newspapers or shopping news,

 

not including delivery or distribution to a point for subsequent

 

delivery or distribution.

 

     (q) Service performed for an employing unit other than a

 

governmental entity or nonprofit organization and that is any of

 

the following:

 

     (i) Service performed by an individual while the individual

 

was a minor student regularly attending either a public or a

 

private school below the college level and the individual's

 

employment during the week was any of the following:

 

     (A) Less than the scheduled hours the individual would have

 

worked in the department or establishment in which the employment

 

occurred if the individual were not a student.

 

     (B) Within the customary vacation days or vacation periods of

 

the school, following which if the individual actually returns to

 

school.

 

     (C) With an employer as a formal and accredited part of the

 

regular curriculum of the individual's school.

 

     (ii) Service performed by a college student of any age, but

 

only if the student's employment is a formal and accredited part of

the regular curriculum of the school.

 

     (iii) Service performed by an individual as a member of a band

 

or orchestra, but only if the service does not represent the

 

principal occupation of the individual.

 

     (r) Subject to subdivision (s), services performed as a direct

 

seller, if the person is engaged in either of the following:

 

     (i) The trade or business of selling, or soliciting the sale

 

of, consumer products or services to any buyer on a buy-sell basis,

 

a deposit-commission basis, or any similar basis that the

 

commission unemployment agency or the U.S. department of labor

 

United States Department of Labor designates by rule or regulation,

 

for resale by the buyer or any other person in the home or

 

otherwise than in a permanent retail establishment.

 

     (ii) The trade or business of selling, or soliciting the sale

 

of, consumer products or services in the home or otherwise than in

 

a permanent retail establishment.

 

     (s) The exclusion of services under subdivision (r) applies

 

only if both of the following conditions are met:

 

     (i) Substantially all the cash or other remuneration , for the

 

performance of the services described in subdivision (r) is

 

directly related to sales or other output, including the

 

performance of the services, rather than to the number of hours

 

worked.

 

     (ii) The services are performed according to a written

 

contract that provides that the person performing the services will

 

not be treated as an employee with respect to those services for

 

federal tax purposes.

     (t) Service performed by an individual as a product

 

demonstrator or product merchandiser if the service is performed

 

under a written contract between the individual and a person whose

 

principal business is obtaining the services of product

 

demonstrators and product merchandisers for third parties for

 

product demonstration and product merchandising purposes, and, both

 

in contract and in fact, the individual meets all of the following

 

conditions:

 

     (i) Is not treated as an employee with respect to those

 

services for federal unemployment tax purposes.

 

     (ii) Is compensated for each job, or the compensation is based

 

on factors that relate to the work performed.

 

     (iii) Determines the method of performing the service.

 

     (iv) Provides the equipment used to perform the service.

 

     (v) Is responsible for the completion of a specific job and is

 

liable for any failure to complete the job.

 

     (vi) Pays all expenses, and the opportunity for profit or loss

 

rests solely with the individual.

 

     (vii) Is responsible for operating costs, fuel, repairs,

 

supplies, and motor vehicle insurance.

 

     (viii) As used in this subdivision:

 

     (A) "Product demonstrator" means an individual who, on a

 

temporary, part-time basis, demonstrates or gives away samples of a

 

food or other product as part of an advertising or sales promotion

 

for the product and who is not otherwise directly employed by the

 

manufacturer, distributor, or retailer.

 

     (B) "Product merchandiser" means an individual who, on a

temporary, part-time basis, builds or resets a product display and

 

who is not otherwise directly employed by the manufacturer,

 

distributor, or retailer.

 

     (C) "Third party" means a manufacturer or broker.

 

     (u) Service performed in an Americorps program but only if

 

both of the following conditions are met:

 

     (i) The individual performed the service under a contract or

 

agreement providing for a guaranteed stipend opportunity.

 

     (ii) The individual received the full amount of the guaranteed

 

stipend before the ending date of the contract or agreement.

 

     (v) Service performed by an individual as an oil, gas, or

 

mineral landman under a contract with a private person or private

 

entity if substantially all remuneration, including payment at a

 

daily rate paid in cash or otherwise for the performance of the

 

service, is directly related to the individual's completion of the

 

specific tasks contracted for rather than the number of hours

 

worked, and if the contract provides that the individual is an

 

independent contractor and not an employee with respect to the

 

contracted service. As used in this subdivision, "landman" means an

 

individual who is engaged in 1 or more of the following:

 

     (i) Negotiating the acquisition or divestiture of oil, gas, or

 

mineral rights.

 

     (ii) Negotiating business agreements that provide for the

 

exploration for, transportation of, or development of oil, gas, or

 

minerals.

 

     (iii) Determining the ownership of oil, gas, or minerals

 

through research of public and private records.

     (iv) Reviewing the status of the title to, and curing title

 

defects and deficiencies associated with, the ownership of oil,

 

gas, or minerals.

 

     (v) Managing rights or obligations derived from the ownership

 

of interests in oil, gas, or minerals.

 

     (vi) Interacting with regulatory agencies in support of

 

activities relating to exploring for and producing oil, gas, or

 

minerals, including unitizing or pooling interests in oil, gas, or

 

minerals.

 

     (w) Service performed by an individual who is 16 years of age

 

or older but less than 21 years of age as an ice hockey player for

 

a junior ice hockey team that is a member of a regional, national,

 

or international junior ice hockey league.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.

 

     Enacting section 2. This amendatory act does not take effect

 

unless Senate Bill No. 483                                    

 

          of the 99th Legislature is enacted into law.