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1997 SESSION
Be it enacted by the General Assembly of Virginia:
1. That § 60.2-219 of the Code of Virginia is amended and reenacted as follows:
§ 60.2-219. Services not included in term "employment."
The term "employment" shall not include:
1. Service performed in the employ of the United States government or of any instrumentality of the United States which is wholly or partially owned by the United States or which is exempt from the tax imposed by § 3301 of the Federal Internal Revenue Code by virtue of any provision of law which specifically refers to such section (or the corresponding section of prior law) in granting such exemption;
2. Service with respect to which unemployment compensation is payable under an unemployment compensation system established by an act of Congress, including service performed after June 30, 1939, for an employer determined to be subject to the Railroad Unemployment Insurance Act (45 U.S.C. § 351 et seq.) by the agency or agencies empowered to make such determination by an act of Congress, and service as an employer representative determined to be subject to such act by such agency or agencies. The Commission is hereby authorized and directed to enter into agreements with the proper agencies under such act of Congress, which agreements shall become effective ten days after publication thereof, in the manner provided in § 60.2-111 for general rules, to provide reciprocal treatment to individuals who have, after acquiring potential rights to benefits under this title, acquired rights to unemployment compensation under such act of Congress, or who have, after acquiring potential rights to unemployment compensation under such act of Congress, acquired rights to benefits under this title;
3. Agricultural labor as defined in § 60.2-201 except as provided for in § 60.2-214;
4. Domestic service in a private home, local college club or local chapter of a college fraternity or sorority except as provided for in § 60.2-215;
5. Service performed on or in connection with a vessel or aircraft not an American vessel or American aircraft by an employee, if the employee is employed on and in connection with such vessel or aircraft when outside the United States;
6. 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, harvesting, cultivating or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds or other aquatic forms of animal and vegetable life, including service performed by any such individual as an ordinary incident to any such activity, except (i) service performed in connection with the catching or taking of salmon or halibut, for commercial purposes and (ii) service performed on or in connection with a vessel of more than ten net tons, determined in the manner provided for determining the register tonnage of merchant vessels under the laws of the United States;
6a. Service performed by an individual on a boat engaged in catching fish or other forms of aquatic life under an arrangement with the owner or operator of such boat pursuant to which:
a. Such individual does not receive any cash remuneration, other than as provided in subdivision b of subdivision 6a;
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 the 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 ten individuals;
7. Service performed by an individual in the employ of his son, daughter, or spouse and service performed by a child under the age of twenty-one in the employ of his father or mother;
8. Service performed in any calendar quarter in the employ of any organization exempt from income tax (i) under § 501 (a) of the Federal Internal Revenue Code (26 U.S.C.), other than an organization described in § 401 (a) of such Code, or (ii) under § 521 of the Federal Internal Revenue Code, if the remuneration for such service is less than fifty dollars;
9. Service performed in the employ of a school, college or university, if such service is performed by a student who is enrolled and is regularly attending classes at such school, college or university;
10. 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;
11. 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;
12. 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;
13 12. Service performed by an individual for an
employing unit as an insurance agent or as an insurance solicitor, if all such
service performed by such individual for such employing unit is performed for
remuneration solely by way of commission;
14 13. Service performed by an individual for an
employing unit as a real estate salesman, if all such service performed by such
individual for such employing unit is performed for remuneration solely by way
of commission;
15 14. 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 such agency's state or under such federal law;
16 15. Service performed by an individual for an
employing unit as an agent in the wholesale distribution and sale of gasoline
and other petroleum products, if all such service performed by such individual
for such employing unit is performed for remuneration solely by way of
commission;
17 16. Service not in the course of the employer's trade
or business performed in any calendar quarter by an employee, unless the cash
remuneration paid for such service is fifty dollars or more and such service is
performed by an individual who is regularly employed by such employer to
perform such service. For the purposes of this subdivision, an individual shall
be deemed to be regularly employed by an employer during a calendar quarter
only if (i) on each of some twenty-four days during such quarter such
individual performs for such employer for some portion of the day service not
in the course of the employer's trade or business, or (ii) such individual was
regularly employed, as determined under (i) of this subdivision, by such
employer in the performance of such service during the preceding calendar
quarter;
18 17. a. 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. In order for such services to be excluded from
"employment":
(1) The individual shall be enrolled as a student in a full-time program,
(2) The program shall be taken for credit at such institution,
(3) The program combines academic instruction with work experience, and
(4) Such service shall be an integral part of such program.
b. Such institution shall certify to the employer that subdivisions
18 17 a (1) through 18 17 a (4) of
this section have been met.
c. This subdivision shall not apply to service performed in a program established for or on behalf of an employer or group of employers;
19 18. Service performed in the employ of a hospital, if
such service is performed by a patient of the hospital, as defined in §
60.2-221;
20 19. Services provided by an individual pursuant to an
agreement among the service recipient, a public human services agency as
defined in § 63.1-291, and such individual to an eligible service
recipient in his own home or the home of the service provider;
21 20. Services performed by an individual as a "direct
seller" provided that:
a. Such person:
(1) Is engaged in the trade or business of selling, or soliciting the sale of,
consumer products to any buyer on a buy-sell basis, a deposit-commission basis,
or any similar basis which the Secretary of the Treasury prescribes by
regulations for resale by the buyer or any other person in the home or
otherwise than in a permanent retail establishment; or
(2) Is engaged in the trade or business of selling, or soliciting the sale of, consumer products to a consumer in the home or otherwise than in a permanent retail establishment; or
(3) Is engaged in the trade or business of the delivery or distribution of newspapers or shopping news (including any delivery services directly related to such trade or business).
b. Substantially all of the remuneration for the services performed as a direct seller, whether or not paid in cash, is directly related to sales or output, including the performances of services, rather than to the number of hours worked;
c. The services performed by the person are performed pursuant to a written contract between such person and the person for whom the services are performed and such contract provides that the person will not be treated as an employee with respect to such services for federal tax purposes;
22 21. Service performed after July 1, 1984, by an
individual as a taxicab driver, or as a driver of an executive sedan as defined
in § 46.2-2500, provided the Commission is furnished evidence that such
individual is excluded from taxation by the Federal Unemployment Tax Act;
23 22. Services performed by an individual as a "contract
carrier courier driver" provided the Commission is furnished evidence that such
individual is excluded from taxation by the Federal Unemployment Tax Act;
24 23. Services performed by a full-time student in the
employ of an organized camp if:
a. Such camp:
(1) Did not operate for more than seven months in the calendar year and did not operate for more than seven months in the preceding calendar year; or
(2) Had average gross receipts for any six months in the preceding calendar year which were not more than thirty-three and one-third percent of its average gross receipts for the other six months in the preceding calendar year; and
b. Such full-time student performed services in the employ of such camp for less than thirteen calendar weeks in such calendar year;
25 24. Services performed by an individual as a court
reporter for an employing unit if all such service performed by the individual
for the employing unit is performed for remuneration solely by way of
commission; and
26 25. Services performed by an individual as a
cosmetologist or as a barber provided the Commission is furnished evidence that
such individual is excluded from taxation by the Federal Unemployment Tax Act.