42 U.S.C. § 410 : US Code - Section 410: Definitions relating to employment

Search 42 U.S.C. § 410 : US Code - Section 410: Definitions relating to employment

For the purposes of this subchapter -
(a) Employment
The term "employment" means any service performed after 1936 and
prior to 1951 which was employment for the purposes of this
subchapter under the law applicable to the period in which such
service was performed, and any service, of whatever nature,
performed after 1950 (A) by an employee for the person employing
him, irrespective of the citizenship or residence of either, (i)
within the United States, or (ii) on or in connection with an
American vessel or American aircraft under a contract of service
which is entered into within the United States or during the
performance of which and while the employee is employed on the
vessel or aircraft it touches at a port in the United States, if
the employee is employed on and in connection with such vessel or
aircraft when outside the United States, or (B) outside the United
States by a citizen or resident of the United States as an employee
(i) of an American employer (as defined in subsection (e) of this
section), or (ii) of a foreign affiliate (as defined in section
3121(l)(6) of the Internal Revenue Code of 1986) of an American
employer during any period for which there is in effect an
agreement, entered into pursuant to section 3121(l) of such Code,
with respect to such affiliate, or (C) if it is service, regardless
of where or by whom performed, which is designated as employment or
recognized as equivalent to employment under an agreement entered
into under section 433 of this title; except that, in the case of
service performed after 1950, such term shall not include -
(1) Service performed by foreign agricultural workers lawfully
admitted to the United States from the Bahamas, Jamaica, and the
other British West Indies, or from any other foreign country or
possession thereof, on a temporary basis to perform agricultural
labor;
(2) Domestic service performed in a local college club, or
local chapter of a college fraternity or sorority, by a student
who is enrolled and is regularly attending classes at a school,
college, or university;
(3)(A) Service performed by a child under the age of 18 in the
employ of his father or mother;
(B) Service not in the course of the employer's trade or
business, or domestic service in a private home of the employer,
performed by an individual under the age of 21 in the employ of
his father or mother, or performed by an individual in the employ
of his spouse or son or daughter; except that the provisions of
this subparagraph shall not be applicable to such domestic
service performed by an individual in the employ of his son or
daughter if -
(i) the employer is a surviving spouse or a divorced
individual and has not remarried, or has a spouse living in the
home who has a mental or physical condition which results in
such spouse's being incapable of caring for a son, daughter,
stepson, or stepdaughter (referred to in clause (ii)) for at
least 4 continuous weeks in the calendar quarter in which the
service is rendered, and
(ii) a son, daughter, stepson, or stepdaughter of such
employer is living in the home, and
(iii) the son, daughter, stepson, or step-daughter (referred
to in clause (ii)) has not attained age 18 or has a mental or
physical condition which requires the personal care and
supervision of an adult for at least 4 continuous weeks in the
calendar quarter in which the service is rendered;
(4) Service performed by an individual on or in connection with
a vessel not an American vessel, or on or in connection with an
aircraft not an American aircraft, if (A) the individual is
employed on and in connection with such vessel or aircraft when
outside the United States and (B)(i) such individual is not a
citizen of the United States or (ii) the employer is not an
American employer;
(5) Service performed in the employ of the United States or any
instrumentality of the United States, if such service -
(A) would be excluded from the term "employment" for purposes
of this subchapter if the provisions of paragraphs (5) and (6)
of this subsection as in effect in January 1983 had remained in
effect, and
(B) is performed by an individual who -
(i) has been continuously performing service described in
subparagraph (A) since December 31, 1983, and for purposes of
this clause -
(I) if an individual performing service described in
subparagraph (A) returns to the performance of such service
after being separated therefrom for a period of less than
366 consecutive days, regardless of whether the period
began before, on, or after December 31, 1983, then such
service shall be considered continuous,
(II) if an individual performing service described in
subparagraph (A) returns to the performance of such service
after being detailed or transferred to an international
organization as described under section 3343 of subchapter
III of chapter 33 of title 5 or under section 3581 of
chapter 35 of such title, then the service performed for
that organization shall be considered service described in
subparagraph (A),
(III) if an individual performing service described in
subparagraph (A) is reemployed or reinstated after being
separated from such service for the purpose of accepting
employment with the American Institute of Taiwan as
provided under section 3310 of title 22, then the service
performed for that Institute shall be considered service
described in subparagraph (A),
(IV) if an individual performing service described in
subparagraph (A) returns to the performance of such service
after performing service as a member of a uniformed service
(including, for purposes of this clause, service in the
National Guard and temporary service in the Coast Guard
Reserve) and after exercising restoration or reemployment
rights as provided under chapter 43 of title 38, then the
service so performed as a member of a uniformed service
shall be considered service described in subparagraph (A),
and
(V) if an individual performing service described in
subparagraph (A) returns to the performance of such service
after employment (by a tribal organization) to which
section 450i(e)(2) of title 25 applies, then the service
performed for that tribal organization shall be considered
service described in subparagraph (A); or
(ii) is receiving an annuity from the Civil Service
Retirement and Disability Fund, or benefits (for service as
an employee) under another retirement system established by a
law of the United States for employees of the Federal
Government (other than for members of the uniformed
services);
except that this paragraph shall not apply with respect to any
such service performed on or after any date on which such
individual performs -
(C) service performed as the President or Vice President of
the United States,
(D) service performed -
(i) in a position placed in the Executive Schedule under
sections 5312 through 5317 of title 5,
(ii) as a noncareer appointee in the Senior Executive
Service or a noncareer member of the Senior Foreign Service,
or
(iii) in a position to which the individual is appointed by
the President (or his designee) or the Vice President under
section 105(a)(1), 106(a)(1), or 107(a)(1) or (b)(1) of title
3, if the maximum rate of basic pay for such position is at
or above the rate for level V of the Executive Schedule,
(E) service performed as the Chief Justice of the United
States, an Associate Justice of the Supreme Court, a judge of a
United States court of appeals, a judge of a United States
district court (including the district court of a territory), a
judge of the United States Court of Federal Claims, a judge of
the United States Court of International Trade, a judge of the
United States Tax Court, a United States magistrate judge, or a
referee in bankruptcy or United States bankruptcy judge,
(F) service performed as a Member, Delegate, or Resident
Commissioner of or to the Congress,
(G) any other service in the legislative branch of the
Federal Government if such service -
(i) is performed by an individual who was not subject to
subchapter III of chapter 83 of title 5 or to another
retirement system established by a law of the United States
for employees of the Federal Government (other than for
members of the uniformed services), on December 31, 1983, or
(ii) is performed by an individual who has, at any time
after December 31, 1983, received a lump-sum payment under
section 8342(a) of title 5 or under the corresponding
provision of the law establishing the other retirement system
described in clause (i), or
(iii) is performed by an individual after such individual
has otherwise ceased to be subject to subchapter III of
chapter 83 of title 5, (without having an application pending
for coverage under such subchapter), while performing service
in the legislative branch (determined without regard to the
provisions of subparagraph (B) relating to continuity of
employment), for any period of time after December 31, 1983,
and for purposes of this subparagraph (G) an individual is
subject to such subchapter III or to any such other retirement
system at any time only if (a) such individual's pay is subject
to deductions, contributions, or similar payments (concurrent
with the service being performed at that time) under section
8334(a) of such title 5 or the corresponding provision of the
law establishing such other system, or (in a case to which
section 8332(k)(1) of such title applies) such individual is
making payments of amounts equivalent to such deductions,
contributions, or similar payments while on leave without pay,
or (b) such individual is receiving an annuity from the Civil
Service Retirement and Disability Fund, or is receiving
benefits (for service as an employee) under another retirement
system established by a law of the United States for employees
of the Federal Government (other than for members of the
uniformed services), or
(H) service performed by an individual -
(i) on or after the effective date of an election by such
individual, under section 301 of the Federal Employees'
Retirement System Act of 1986, section 2157 of title 50, or
the Federal Employees' Retirement System Open Enrollment Act
of 1997 (!1) to become subject to the Federal Employees'
Retirement System provided in chapter 84 of title 5, or
(ii) on or after the effective date of an election by such
individual, under regulations issued under section 860 of the
Foreign Service Act of 1980 [22 U.S.C. 4071i], to become
subject to the Foreign Service Pension System provided in
subchapter II of chapter 8 of title I of such Act [22 U.S.C.
4071 et seq.];
(6) Service performed in the employ of the United States or any
instrumentality of the United States if such service is performed
-
(A) in a penal institution of the United States by an inmate
thereof;
(B) by any individual as an employee included under section
5351(2) of title 5 (relating to certain interns, student
nurses, and other student employees of hospitals of the Federal
Government), other than as a medical or dental intern or a
medical or dental resident in training; or
(C) by any individual as an employee serving on a temporary
basis in case of fire, storm, earthquake, flood, or other
similar emergency;
(7) Service performed in the employ of a State, or any
political subdivision thereof, or any instrumentality of any one
or more of the foregoing which is wholly owned thereby, except
that this paragraph shall not apply in the case of -
(A) service included under an agreement under section 418 of
this title,
(B) service which, under subsection (k) of this section,
constitutes covered transportation service,
(C) service in the employ of the Government of Guam or the
Government of American Samoa or any political subdivision
thereof, or of any instrumentality of any one or more of the
foregoing which is wholly owned thereby, performed by an
officer or employee thereof (including a member of the
legislature of any such Government or political subdivision),
and, for purposes of this subchapter -
(i) any person whose service as such an officer or employee
is not covered by a retirement system established by a law of
the United States shall not, with respect to such service, be
regarded as an officer or employee of the United States or
any agency or instrumentality thereof, and
(ii) the remuneration for service described in clause (i)
(including fees paid to a public official) shall be deemed to
have been paid by the Government of Guam or the Government of
American Samoa or by a political subdivision thereof or an
instrumentality of any one or more of the foregoing which is
wholly owned thereby, whichever is appropriate,
(D) service performed in the employ of the District of
Columbia or any instrumentality which is wholly owned thereby,
if such service is not covered by a retirement system
established by a law of the United States (other than the
Federal Employees Retirement System provided in chapter 84 of
title 5); except that the provisions of this subparagraph shall
not be applicable to service performed -
(i) in a hospital or penal institution by a patient or
inmate thereof;
(ii) by any individual as an employee included under
section 5351(2) of title 5 (relating to certain interns,
student nurses, and other student employees of hospitals of
the District of Columbia Government), other than as a medical
or dental intern or as a medical or dental resident in
training;
(iii) by any individual as an employee serving on a
temporary basis in case of fire, storm, snow, earthquake,
flood, or other similar emergency; or
(iv) by a member of a board, committee, or council of the
District of Columbia, paid on a per diem, meeting, or other
fee basis,
(E) service performed in the employ of the Government of Guam
(or any instrumentality which is wholly owned by such
Government) by an employee properly classified as a temporary
or intermittent employee, if such service is not covered by a
retirement system established by a law of Guam; except that (i)
the provisions of this subparagraph shall not be applicable to
services performed by an elected official or a member of the
legislature or in a hospital or penal institution by a patient
or inmate thereof, and (ii) for purposes of this subparagraph,
clauses (i) and (ii) of subparagraph (C) shall apply, or
(F) service in the employ of a State (other than the District
of Columbia, Guam, or American Samoa), of any political
subdivision thereof, or of any instrumentality of any one or
more of the foregoing which is wholly owned thereby, by an
individual who is not a member of a retirement system of such
State, political subdivision, or instrumentality, except that
the provisions of this subparagraph shall not be applicable to
service performed -
(i) by an individual who is employed to relieve such
individual from unemployment;
(ii) in a hospital, home, or other institution by a patient
or inmate thereof;
(iii) by any individual as an employee serving on a
temporary basis in case of fire, storm, snow, earthquake,
flood, or other similar emergency;
(iv) by an election official or election worker if the
remuneration paid in a calendar year for such service is less
than $1,000 with respect to service performed during any
calendar year commencing on or after January 1, 1995, ending
on or before December 31, 1999, and the adjusted amount
determined under section 418(c)(8)(B) of this title for any
calendar year commencing on or after January 1, 2000, with
respect to service performed during such calendar year; or
(v) by an employee in a position compensated solely on a
fee basis which is treated pursuant to section 411(c)(2)(E)
of this title as a trade or business for purposes of
inclusion of such fees in net earnings from self employment;
for purposes of this subparagraph, except as provided in
regulations prescribed by the Secretary of the Treasury, the
term "retirement system" has the meaning given such term by
section 418(b)(4) of this title;
(8)(A) Service performed by a duly ordained, commissioned, or
licensed minister of a church in the exercise of his ministry or
by a member of a religious order in the exercise of duties
required by such order, except that this subparagraph shall not
apply to service performed by a member of such an order in the
exercise of such duties, if an election of coverage under section
3121(r) of the Internal Revenue Code of 1986 is in effect with
respect to such order, or with respect to the autonomous
subdivision thereof to which such member belongs;
(B) Service performed in the employ of a church or qualified
church-controlled organization if such church or organization has
in effect an election under section 3121(w) of the Internal
Revenue Code of 1986, other than service in an unrelated trade or
business (within the meaning of section 513(a) of such Code);
(9) Service performed by an individual as an employee or
employee representative as defined in section 3231 of the
Internal Revenue Code of 1986;
(10) Service performed in the employ of -
(A) a school, college, or university, or
(B) an organization described in section 509(a)(3) of the
Internal Revenue Code of 1986 if the organization is organized,
and at all times thereafter is operated, exclusively for the
benefit of, to perform the functions of, or to carry out the
purposes of a school, college, or university and is operated,
supervised, or controlled by or in connection with such school,
college, or university, unless it is a school, college, or
university of a State or a political subdivision thereof and
the services in its employ performed by a student referred to
in section 418(c)(5) of this title are covered under the
agreement between the Commissioner of Social Security and such
State entered into pursuant to section 418 of this title;
if such service is performed by a student who is enrolled and
regularly attending classes at such school, college, or
university;
(11) Service performed in the employ of a foreign government
(including service as a consular or other officer or employee or
a nondiplomatic representative);
(12) Service performed in the employ of an instrumentality
wholly owned by a foreign government -
(A) 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
(B) If the Secretary of State shall certify to the Secretary
of the Treasury that the foreign government, with respect to
whose instrumentality and employees thereof 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;
(13) 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;
(14)(A) Service performed by an individual under the age of
eighteen in the delivery or distribution of newspapers or
shopping news, not including delivery or distribution to any
point for subsequent delivery or distribution;
(B) Service 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;
(15) Service performed in the employ of an international
organization entitled to enjoy privileges, exemptions, and
immunities as an international organization under the
International Organizations Immunities Act (59 Stat. 669) [22
U.S.C. 288 et seq.], except service which constitutes
"employment" under subsection (r) of this section;
(16) Service performed by an individual under an arrangement
with the owner or tenant of land pursuant to which -
(A) such individual undertakes to produce agricultural or
horticultural commodities (including livestock, bees, poultry,
and fur-bearing animals and wildlife) on such land,
(B) the agricultural or horticultural commodities produced by
such individual, or the proceeds therefrom, are to be divided
between such individual and such owner or tenant, and
(C) the amount of such individual's share depends on the
amount of the agricultural or horticultural commodities
produced;
(17) Service in the employ of any organization which is
performed (A) in any year during any part of which such
organization is registered, or there is in effect a final order
of the Subversive Activities Control Board requiring such
organization to register, under the Internal Security Act of
1950, as amended [50 U.S.C. 781 et seq.], as a Communist-action
organization, a Communist-front organization, or a Communist-
infiltrated organization, and (B) after June 30, 1956;
(18) Service performed in Guam by a resident of the Republic of
the Philippines while in Guam on a temporary basis as a
nonimmigrant alien admitted to Guam pursuant to section
1101(a)(15)(H)(ii) of title 8;
(19) Service which is performed by a nonresident alien
individual for the period he is temporarily present in the United
States as a nonimmigrant under subparagraph (F), (J), (M), or (Q)
of section 1101(a)(15) of title 8, and which is performed to
carry out the purpose specified in subparagraph (F), (J), (M), or
(Q) as the case may be;
(20) Service (other than service described in paragraph (3)(A))
performed by an individual on a boat engaged in catching fish or
other forms of aquatic animal life under an arrangement with the
owner or operator of such boat pursuant to which -
(A) such individual does not receive any additional
compensation other than as provided in subparagraph (B) and
other than cash remuneration -
(i) which does not exceed $100 per trip;
(ii) which is contingent on a minimum catch; and
(iii) which is paid solely for additional duties (such as
mate, engineer, or cook) for which additional cash
remuneration is traditional in the industry,
(B) such individual receives a share of the boat's (or the
boats' in the case of a fishing operation involving more than
one boat) catch of fish or other forms of aquatic animal life
or a share of the proceeds from the sale of such catch, and
(C) the amount of such individual's share depends on the
amount of the boat's (or boats' in the case of a fishing
operation involving more than one boat) catch of fish or other
forms of aquatic animal life,
but only if the operating crew of such boat (or each boat from
which the individual receives a share in the case of a fishing
operation involving more than one boat) is normally made up of
fewer than 10 individuals; or
(21) Domestic service in a private home of the employer which -

(A) is performed in any year by an individual under the age
of 18 during any portion of such year; and
(B) is not the principal occupation of such employee.
For purposes of paragraph (20), the operating crew of a boat shall
be treated as normally made up of fewer than 10 individuals if the
average size of the operating crew on trips made during the
preceding 4 calendar quarters consisted of fewer than 10
individuals.
(b) Included and excluded service
If the services performed during one-half or more of any pay
period by an employee for the person employing him constitute
employment, all the services of such employee for such period shall
be deemed to be employment; but if the services performed during
more than one-half of any such pay period by an employee for the
person employing him do not constitute employment, then none of the
services of such employee for such period shall be deemed to be
employment. As used in this subsection, the term "pay period" means
a period (of not more than thirty-one consecutive days) for which a
payment of remuneration is ordinarily made to the employee by the
person employing him. This subsection shall not be applicable with
respect to services performed in a pay period by an employee for
the person employing him, where any of such service is excepted by
paragraph (9) of subsection (a) of this section.
(c) American vessel
The term "American vessel" means any vessel documented or
numbered under the laws of the United States; and includes any
vessel which is neither documented or numbered under the laws of
the United States nor documented under the laws of any foreign
country, if its crew is employed solely by one or more citizens or
residents of the United States or corporations organized under the
laws of the United States or of any State.
(d) American aircraft
The term "American aircraft" means an aircraft registered under
the laws of the United States.
(e) American employer
The term "American employer" means an employer which is (1) the
United States or any instrumentality thereof, (2) a State or any
political subdivision thereof, or any instrumentality of any one or
more of the foregoing, (3) an individual who is a resident of the
United States, (4) a partnership, if two-thirds or more of the
partners are residents of the United States, (5) a trust, if all of
the trustees are residents of the United States, or (6) a
corporation organized under the laws of the United States or of any
State.
(f) Agricultural labor
The term "agricultural labor" includes all service performed -
(1) 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 fur-bearing animals and
wildlife.
(2) 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.
(3) In connection with the production or harvesting of any
commodity defined as an agricultural commodity in section
1141j(g) of title 12, or in connection with the ginning of
cotton, 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.
(4)(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 of the commodity with
respect to which such service is performed.
(B) In the employ of a group of operators of farms (other than
a cooperative organization) in the performance of service
described in subparagraph (A) of this paragraph, but only if such
operators produced all of the commodity with respect to which
such service is performed. For the purposes of this subparagraph,
any unincorporated group of operators shall be deemed a
cooperative organization if the number of operators comprising
such group is more than twenty at any time during the calendar
year in which such service is performed.
(5) On a farm operated for profit if such service is not in the
course of the employer's trade or business.
The provisions of subparagraphs (A) and (B) of paragraph (4) of
this subsection 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.
(g) Farm
The term "farm" includes stock, dairy, poultry, fruit, fur-
bearing animal, and truck farms, plantations, ranches, nurseries,
ranges, greenhouses or other similar structures used primarily for
the raising of agricultural or horticultural commodities, and
orchards.
(h) State
The term "State" includes the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American
Samoa.
(i) United States
The term "United States" when used in a geographical sense means
the States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, and American Samoa.
(j) Employee
The term "employee" means -
(1) any officer of a corporation; or
(2) any individual who, under the usual common law rules
applicable in determining the employer-employee relationship, has
the status of an employee; or
(3) any individual (other than an individual who is an employee
under paragraph (1) or (2) of this subsection) who performs
services for remuneration for any person -
(A) 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 his principal;
(B) as a full-time life insurance salesman;
(C) as a home worker performing work, according to
specifications furnished by the person for whom the services
are performed, on materials or goods furnished by such person
which are required to be returned to such person or a person
designated by him; or
(D) as a traveling or city salesman, 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, his
principal (except for side-line 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;
if the contract of service contemplates that substantially all of
such services are to be performed personally by such individual;
except that an individual shall not be included in the term
"employee" under the provisions of this paragraph if such
individual has a substantial investment in facilities used in
connection with the performance of such services (other than in
facilities for transportation), or if the services are in the
nature of a single transaction not part of a continuing
relationship with the person for whom the services are performed.
(k) Covered transportation service
(1) Except as provided in paragraph (2) of this subsection, all
service performed in the employ of a State or political subdivision
in connection with its operation of a public transportation system
shall constitute covered transportation service if any part of the
transportation system was acquired from private ownership after
1936 and prior to 1951.
(2) Service performed in the employ of a State or political
subdivision in connection with the operation of its public
transportation system shall not constitute covered transportation
service if -
(A) any part of the transportation system was acquired from
private ownership after 1936 and prior to 1951, and substantially
all service in connection with the operation of the
transportation system is, on December 31, 1950, covered under a
general retirement system providing benefits which, by reason of
a provision of the State constitution dealing specifically with
retirement systems of the State or political subdivisions
thereof, cannot be diminished or impaired; or
(B) no part of the transportation system operated by the State
or political subdivision on December 31, 1950, was acquired from
private ownership after 1936 and prior to 1951;
except that if such State or political subdivision makes an
acquisition after 1950 from private ownership of any part of its
transportation system, then, in the case of any employee who -
(C) became an employee of such State or political subdivision
in connection with and at the time of its acquisition after 1950
of such part, and
(D) prior to such acquisition rendered service in employment in
connection with the operation of such part of the transportation
system acquired by the State or political subdivision,
the service of such employee in connection with the operation of
the transportation system shall constitute covered transportation
service, commencing with the first day of the third calendar
quarter following the calendar quarter in which the acquisition of
such part took place, unless on such first day such service of such
employee is covered by a general retirement system which does not,
with respect to such employee, contain special provisions
applicable only to employees described in subparagraph (C) of this
paragraph.
(3) All service performed in the employ of a State or political
subdivision thereof in connection with its operation of a public
transportation system shall constitute covered transportation
service if the transportation system was not operated by the State
or political subdivision prior to 1951 and, at the time of its
first acquisition (after 1950) from private ownership of any part
of its transportation system, the State or political subdivision
did not have a general retirement system covering substantially all
service performed in connection with the operation of the
transportation system.
(4) For the purposes of this subsection -
(A) The term "general retirement system" means any pension,
annuity, retirement, or similar fund or system established by a
State or by a political subdivision thereof for employees of the
State, political subdivision, or both; but such term shall not
include such a fund or system which covers only service performed
in positions connected with the operation of its public
transportation system.
(B) A transportation system or a part thereof shall be
considered to have been acquired by a State or political
subdivision from private ownership if prior to the acquisition
service performed by employees in connection with the operation
of the system or part thereof acquired constituted employment
under this subchapter, and some of such employees became
employees of the State or political subdivision in connection
with and at the time of such acquisition.
(C) The term "political subdivision" includes an
instrumentality of (i) a State, (ii) one or more political
subdivisions of a State, or (iii) a State and one or more of its
political subdivisions.
(l) Service in uniformed services
(1) Except as provided in paragraph (4), the term "employment"
shall, notwithstanding the provisions of subsection (a) of this
section, include -
(A) service performed after December 1956 by an individual as a
member of a uniformed service on active duty, but such term shall
not include any such service which is performed while on leave
without pay, and
(B) service performed after December 1987 by an individual as a
member of a uniformed service on inactive duty training.
(2) The term "active duty" means "active duty" as described in
paragraph (21) of section 101 of title 38, except that it shall
also include "active duty for training" as described in paragraph
(22) of such section.
(3) The term "inactive duty training" means "inactive duty
training" as described in paragraph (23) of such section 101.
(4)(A) Paragraph (1) of this subsection shall not apply in the
case of any service, performed by an individual as a member of a
uniformed service, which is creditable under section 231b(i) of
title 45. The Railroad Retirement Board shall notify the
Commissioner of Social Security,(!2) with respect to all such
service which is so creditable.
(B) In any case where benefits under this subchapter are already
payable on the basis of such individual's wages and self-employment
income at the time such notification (with respect to such
individual) is received by the Commissioner of Social Security, the
Commissioner of Social Security shall certify no further benefits
for payment under this subchapter on the basis of such individual's
wages and self-employment income, or shall recompute the amount of
any further benefits payable on the basis of such wages and self-
employment income, as may be required as a consequence of
subparagraph (A) of this paragraph. No payment of a benefit to any
person on the basis of such individual's wages and self-employment
income, certified by the Commissioner of Social Security prior to
the end of the month in which the Commissioner receives such
notification from the Railroad Retirement Board, shall be deemed by
reason of this subparagraph to have been an erroneous payment or a
payment to which such person was not entitled. The Commissioner of
Social Security shall, as soon as possible after the receipt of
such notification from the Railroad Retirement Board, advise such
Board whether or not any such benefit will be reduced or terminated
by reason of subparagraph (A) of this paragraph, and if any such
benefit will be so reduced or terminated, specify the first month
with respect to which such reduction or termination will be
effective.
(m) Member of a uniformed service
The term "member of a uniformed service" means any person
appointed, enlisted, or inducted in a component of the Army, Navy,
Air Force, Marine Corps, or Coast Guard (including a reserve
component as defined in section 101(27) of title 38), or in one of
those services without specification of component, or as a
commissioned officer of the Coast and Geodetic Survey, the National
Oceanic and Atmospheric Administration Corps, or the Regular or
Reserve Corps of the Public Health Service, and any person serving
in the Army or Air Force under call or conscription. The term
includes -
(1) a retired member of any of those services;
(2) a member of the Fleet Reserve or Fleet Marine Corps
Reserve;
(3) a cadet at the United States Military Academy, a midshipman
at the United States Naval Academy, and a cadet at the United
States Coast Guard Academy or United States Air Force Academy;
(4) a member of the Reserve Officers' Training Corps, the Naval
Reserve Officers' Training Corps, or the Air Force Reserve
Officers' Training Corps, when ordered to annual training duty
for fourteen days or more, and while performing authorized travel
to and from that duty; and
(5) any person while en route to or from, or at, a place for
final acceptance or for entry upon active duty in the military,
naval, or air service -
(A) who has been provisionally accepted for such duty; or
(B) who, under the Military Selective Service Act [50 App.
U.S.C. 451 et seq.], has been selected for active military,
naval, or air service;
and has been ordered or directed to proceed to such place.
The term does not include a temporary member of the Coast Guard
Reserve.
(n) Crew leader
The term "crew leader" means an individual who furnishes
individuals to perform agricultural labor for another person, if
such individual pays (either on his own behalf or on behalf of such
person) the individuals so furnished by him for the agricultural
labor performed by them and if such individual has not entered into
a written agreement with such person whereby such individual has
been designated as an employee of such person; and such individuals
furnished by the crew leader to perform agricultural labor for
another person shall be deemed to be the employees of such crew
leader. A crew leader shall, with respect to services performed in
furnishing individuals to perform agricultural labor for another
person and service performed as a member of the crew, be deemed not
to be an employee of such other person.
(o) Peace Corps volunteer service
The term "employment" shall, notwithstanding the provisions of
subsection (a) of this section, include service performed by an
individual as a volunteer or volunteer leader within the meaning of
the Peace Corps Act [22 U.S.C. 2501 et seq.].
(p) Medicare qualified government employment
(1) For purposes of sections 426 and 426-1 of this title, the
term "medicare qualified government employment" means any service
which would constitute "employment" as defined in subsection (a) of
this section but for the application of the provisions of -
(A) subsection (a)(5) of this section, or
(B) subsection (a)(7) of this section, except as provided in
paragraphs (2) and (3).
(2) Service shall not be treated as employment by reason of
paragraph (1)(B) if the service is performed -
(A) by an individual who is employed by a State or political
subdivision thereof to relieve him from unemployment,
(B) in a hospital, home, or other institution by a patient or
inmate thereof as an employee of a State or political subdivision
thereof or of the District of Columbia,
(C) by an individual, as an employee of a State or political
subdivision thereof or of the District of Columbia, serving on a
temporary basis in case of fire, storm, snow, earthquake, flood
or other similar emergency,
(D) by any individual as an employee included under section
5351(2) of title 5 (relating to certain interns, student nurses,
and other student employees of hospitals of the District of
Columbia Government), other than as a medical or dental intern or
a medical or dental resident in training, or
(E) by an election official or election worker if the
remuneration paid in a calendar year for such service is less
than $1,000 with respect to service performed during any calendar
year commencing on or after January 1, 1995, ending on or before
December 31, 1999, and the adjusted amount determined under
section 418(c)(8)(B) of this title for any calendar year
commencing on or after January 1, 2000, with respect to service
performed during such calendar year.
As used in this paragraph, the terms "State" and "political
subdivision" have the meanings given those terms in section 418(b)
of this title.
(3) Service performed for an employer shall not be treated as
employment by reason of paragraph (1)(B) if -
(A) such service would be excluded from the term "employment"
for purposes of this section if paragraph (1)(B) did not apply;
(B) such service is performed by an individual -
(i) who was performing substantial and regular service for
remuneration for that employer before April 1, 1986,
(ii) who is a bona fide employee of that employer on March
31, 1986, and
(iii) whose employment relationship with that employer was
not entered into for purposes of meeting the requirements of
this subparagraph; and
(C) the employment relationship with that employer has not been
terminated after March 31, 1986.
(4) For purposes of paragraph (3), under regulations (consistent
with regulations established under section 3121(u)(2)(D) of the
Internal Revenue Code of 1986) -
(A) all agencies and instrumentalities of a State (as defined
in section 418(b) of this title) or of the District of Columbia
shall be treated as a single employer, and
(B) all agencies and instrumentalities of a political
subdivision of a State (as so defined) shall be treated as a
single employer and shall not be treated as described in
subparagraph (A).
(q) Treatment of real estate agents and direct sellers
Notwithstanding any other provision of this subchapter, the rules
of section 3508 of the Internal Revenue Code of 1986 shall apply
for purposes of this subchapter.
(r) Service in employ of international organizations by certain
transferred Federal employees
(1) For purposes of this subchapter, service performed in the
employ of an international organization by an individual pursuant
to a transfer of such individual to such international organization
pursuant to section 3582 of title 5 shall constitute "employment"
if -
(A) immediately before such transfer, such individual performed
service with a Federal agency which constituted "employment" as
defined in subsection (a) of this section, and
(B) such individual would be entitled, upon separation from
such international organization and proper application, to
reemployment with such Federal agency under such section 3582.
(2) For purposes of this subsection:
(A) The term "Federal agency" means an agency, as defined in
section 3581(1) of title 5.
(B) The term "international organization" has the meaning
provided such term by section 3581(3) of title 5.