HB-4958, As Passed House, June 12, 2014HB-4958, As Passed Senate, June 12, 2014

SUBSTITUTE FOR

HOUSE BILL NO. 4958

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

"Michigan employment security act,"

by amending sections 26a, 42, and 43 (MCL 421.26a, 421.42, and

421.43), section 26a as added by 2011 PA 268, section 42 as amended

by 2011 PA 269, and section 43 as amended by 2004 PA 243.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 26a. (1) The director of the department of licensing and

regulatory affairs may request the Michigan finance authority to

issue notes, bonds, financial instruments, or other evidences of

indebtedness, the proceeds of which may be used for any of the

following purposes:

(a) To finance, refinance, refund, or advance refund any

payment required or obligation arising under this section or under

42 USC 1321 and 1322.

(b) To repay amounts owed or to be owed to the United States

treasury resulting from advances made to this state by the federal

government under federal law, including 42 USC 1321, together with

interest on those advances.

following circumstances:

(i) By this state to the unemployment trust fund and used to

make any payment required or obligation described in this section

or 42 USC 1321.

(ii) By the unemployment trust fund to the obligation trust

fund and used to pay obligations of the Michigan finance authority.

(d) To fund unemployment compensation benefits and this

state's account within the federal government unemployment trust

fund, including balances in that account.

(e) To fund capitalized interest; debt service reserve funds;

and payment of costs of, and administrative expenses in connection

with, issuing obligations.

(2) In 2011 and in each year thereafter in which any

obligation is outstanding, an employer is subject to, shall be

assessed, and shall pay an unemployment obligation assessment,

which shall be collected quarterly and shall be deposited to the

credit of the obligation trust fund. The obligation assessment is

in addition to the employer's required contributions, is not

subject to the limiting provisions for contributions required under

this act, and is in addition to and separate from the solvency tax

imposed under section 19a.

(3) The unemployment obligation assessment rate shall be

determined by the state treasurer after consultation with the

director of the department of licensing and regulatory affairs and

shall be an amount sufficient to ensure timely payment of all of

the following:

(a) Principal, interest, and any redemption premium on the

obligations.

(b) Administrative expenses, credit enhancement and

termination fees, and other fees, if any, in connection with

issuing the obligations.

the terms of a resolution, indenture, or authorizing statute under

which the obligation is issued.

(d) Amounts necessary to maintain the ratings on the

obligations that are assigned by a nationally recognized rating

service at a level determined by the state treasurer, in his or her

sole discretion.

(4) The obligation assessment rate may take into account the

employer's experience rating from the previous year.

Notwithstanding the exclusion from employment under section

43(a)(ii) of services performed for the employer, wages paid for

performing those services shall be used to calculate the employer's

obligation assessment rate and obligation assessment under this

section. The obligation assessment rate shall be applied against

the taxable wage limit described in section 44, and shall be

assessed against all contributing employers.

(5) The obligation assessment is due at the same time,

collected in the same manner, and subject to the same penalties and

interest as contributions assessed under this act.

(6) The proceeds of obligation assessments received each year

are irrevocably pledged and dedicated to the payment of obligations

and administrative expenses on those expenses and are subject to

the pledge and lien made to the extent and as described in the

resolution, indenture, or the authorizing statute under which the

obligation is issued.

(7) The director of the department of licensing and regulatory

affairs shall administer and cause the obligation assessments to be

collected.

(8) The director of the department of licensing and regulatory

affairs may request the state treasurer to establish additional

special subaccounts within the obligation trust fund for the

purpose of identifying more precisely the sources of payments into

and disbursements from the obligation trust fund, or as may be

required under the resolution or indenture authorizing the

obligations.

(9) The director of the department of licensing and regulatory

affairs or his or her designee may enter into agreements with the

issuer of the obligations or a third party as is necessary to issue

the obligations. Nothing in this act or any provision of any

document authorized under this section creates or constitutes state

indebtedness.

(10) As used in this section and section 10a:

(a) "Michigan finance authority" means the authority created

under Executive Order No. 2010-2, MCL 12.194.

(b) "Obligation" means a note, bond, financial instrument or

other evidence of indebtedness issued as provided in this section.

on an employer under this section.

(d) "Obligation trust fund" means the fund created in section

10a.

Sec. 42. (1) "Employment" means service, including service in

interstate commerce, performed for remuneration or under any

contract of hire, written or oral, express or implied.

(2) "Employment" includes an individual's entire service,

performed within or both within and without this state if any of

the following apply:

(a) The service is localized in this state. Service shall be

deemed to be localized within a state if the service is performed

entirely within the state; or the service is performed both within

and without the state, but the service performed without the state

is incidental to the individual's service within the state, such as

service which is temporary or transitory in nature or consists of

isolated transactions.

(b) The service is not localized in a state but some of the

service performed in this state and the base of operations, or, if

there is not a base of operations, then the place from which the

service is directed or controlled, is in this state; or the base of

operations or place from which the service is directed or

controlled is not in a state in which some part of the service is

performed, but the individual's residence is in this state.

any state but is performed by an employee on or in connection with

an American aircraft, if either the contract of service is entered

into within this state or if the contract of service is not entered

into within this state or within any other state and during the

performance of the contract of service and while the employee is

employed on the aircraft, it touches at an airfield in this state,

and the employee is employed on and in connection with the aircraft

when outside the United States. The unemployment agency may enter

into reciprocal agreements with other states with respect to

aircraft which touch airfields in more than 1 state.

(3) Service performed within this state but not covered under

subsection (2) and not excluded under section 43 shall be deemed to

be employment subject to this act if contributions are not required

and paid with respect to those services under an unemployment

compensation law of any other state or of the federal government.

(4) Services, not covered under subsection (2), performed

entirely without this state, for which contributions are not

required and paid under an unemployment compensation law of any

other state or of the federal government, shall be deemed to be

employment subject to this act if the unemployment agency approves

the election of the employer for whom the services are performed

that the entire service of the individual shall be deemed to be

employment subject to this act. Such an election may be canceled by

the employer by filing a written notice with the unemployment

agency before January 30 of any year stating the employer's desire

to cancel the election or at any time by submitting to the

unemployment agency satisfactory proof that the services designated

in the election are covered by an unemployment compensation law of

another state or of the federal government, or if the services are

covered by an arrangement pursuant to section 11 between the

unemployment agency 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 the

state, shall be deemed to be employment if the unemployment agency

has approved an election of the employing unit for which the

services are performed, pursuant to which the entire service of the

individual during the period covered by the election is deemed to

be employment.

(5) Before January 1, 2013, services performed by an

individual for remuneration are not employment subject to this act,

unless the individual is under the employer's control or direction

as to the performance of the services both under a contract for

hire and in fact. Service performed by an individual for

remuneration under an exclusive contract that provides for the

individual's control and direction by a person, firm, or

corporation possessing a public service permit or by a certificated

motor carrier transporting goods or property for hire are

employment subject to this act. Service is employment under this

act if it is performed by an individual who by lease, contract, or

arrangement places at the disposal of a person, firm, or

corporation a piece of motor vehicle equipment and under a contract

of hire that provides for the individual's control and direction,

is engaged by the person, firm, or corporation to operate the motor

vehicle equipment. On and after January 1, 2013, services are

employment if the services are performed by an individual who the

agency determines to be in an employer-employee relationship using

the 20-factor test announced by the internal revenue service of the

United States department of treasury in revenue ruling 87-41, 1987-

1 C.B. 296. An individual from whom an employer is required to

withhold federal income tax is prima facie considered to perform

services in employment under this act.

(6) Notwithstanding section 43, services performed for an

employing unit, for which the employing unit is liable for federal

tax against which credit may be taken for contributions required to

be paid into a state unemployment compensation fund, except service

performed by an individual holding a visa described in section

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

1101, shall be deemed to constitute employment for the purposes of

this act, but only to the extent that the services constitute

employment with respect to which federal tax is payable.

Notwithstanding any other provision of this act or any amendatory

act, services performed for an employing unit which are required to

be covered under this act, as a condition for its certification by

the United States secretary of labor, shall constitute employment

for the purposes of this act. The unemployment agency may waive the

provisions of this subsection with respect to services performed

within this state if the employing unit is an employer solely by

reason of section 41(7) and establishes that the services are

covered by the election of the employing unit under any other state

unemployment compensation law. This subsection ~~shall~~ does not apply

to the exceptions provided in section 43(q).

(7) Notwithstanding subsection (2) all service performed after

December 31, 1964, by an officer or member of the crew of an

American vessel on or in connection with the vessel is deemed to be

employment subject to this act 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.

(8)(a) Service performed before January 1, 1978, by an

individual in the classified civil service of this state and

service performed by an individual for a school district, a

community college district, a school or educational facility owned

or operated by the state other than an institution of higher

education, or a political subdivision of the state ~~, except a~~

~~political subdivision which has a local unemployment compensation~~

~~system as provided in section 13j,~~ is employment subject to this

act.

(b) Service performed after December 31, 1977, in the employ

of a governmental entity as defined in section 50a is employment

subject to this act.

(9) "Employment" includes service performed after December 31,

1971, by an individual in the employ of this state or any of its

instrumentalities for a state hospital or state institution of

higher education, or in the employ of this state and 1 or more

other states or their instrumentalities for a hospital or

institution of higher education located in this state. Coverage of

services performed for these hospitals and institutions of higher

education after December 31, 1977, shall be determined pursuant to

~~section 42(8)(b).~~subsection (8)(b).

(10) "Employment" includes service performed after December

31, 1971, by an individual in the employ of a religious,

charitable, educational, or other organization which is excluded

from the term "employment" as defined in the federal unemployment

tax act solely by reason of section 3306(c)(8) of the unemployment

tax act.

(11) "Employment" includes service performed after December

31, 1971, by an individual for his principal as an agent driver or

commission driver engaged in distributing beverages, meat,

vegetable, fruit, bakery, dairy, or other food products, or laundry

or dry cleaning services; or 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 sideline sales activities on behalf of

some other person, of orders from wholesalers, retailers,

contractors, operators of hotels, restaurants, or other similar

establishments for merchandise for resale or supplies for use in

their business operations. For purposes of this subsection,

"employment" includes services performed after December 31, 1971,

only if all of the following apply:

(a) The contract of service contemplates that substantially

all of the services are to be performed personally by the

individual.

(b) 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.

which is not part of a continuing relationship with the person for

whom the services are performed.

(12) "Employment" includes service performed by a United

States citizen outside the United States after December 31, 1971,

except in Canada, and in the Virgin Islands after December 31,

1971, and before January 1 of the year following the year in which

the United States secretary of labor approves the unemployment

compensation law of the Virgin Islands under section 3304(a) of the

internal revenue code, while in the employ of an American employer

and is other than service which is employment pursuant to

subsection (2) or a parallel provision of another state's law, if

the requirements of subdivision (a), (b), or (c) are met:

(a) The employer's principal place of business in the United

States is located in this state.

(b) The employer does not have a place of business in the

United States, but the employer is any of the following:

(i) An individual who is a resident of this state.

(ii) A corporation which is organized under the laws of this

state.

(iii) 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.

but the employer elected coverage of the service under this act, or

the employer failed to elect coverage in any state and the

individual filed a claim for benefits based on the service under

the law of this state.

(d) An "American employer", for purposes of this subsection,

means a person who is one of the following:

(i) An individual who is a resident of the United States.

(ii) A partnership if 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.

(iv) A corporation organized under the laws of the United

States or of any state.

(e) As used in this subsection, "United States" includes the

states, the District of Columbia, and the Commonwealth of Puerto

Rico.

(13) Notwithstanding any other provision of this act, the term

"employment" ~~shall include~~ includes an individual's service,

wherever performed within the United States, the Virgin Islands, or

Canada, if the service is not covered under the unemployment

compensation law of any other state, the Virgin Islands, or Canada,

and the place from which the service is directed or controlled is

in this state.

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

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

(a) ~~Agricultural service~~ Services performed by an individual

who is an alien admitted to the United States to perform ~~that~~

~~service according to sections~~ services described in either of the

following:

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

the immigration and nationality act, 8 USC 1184 and 8 USC

~~1101.~~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 petitioner of an H-2B visa holder, as documented on an

approved I-129 petition for a nonimmigrant worker, or the sponsor

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

the DS-2019 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 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 of the United States from the contributions

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

payable under an unemployment compensation system established by an

act of congress. However, the commission shall enter into

agreements with the proper agencies under the act of congress,

which agreements take effect 10 days after publication of the

agreements in the manner provided in section 4 for regulations to

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, or

who have, after acquiring potential rights to unemployment

compensation under the act of 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) 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, fur-bearing animals, truck farms,

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

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 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 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 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).

(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.

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 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 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 the individual actually returns to

school.

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 or the U.S. 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 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 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.

(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.

Enacting section 1. This amendatory act takes effect 60 days

after the date it is enacted into law.