Ind. Code § 22-2-2-3

Current through P.L. 171-2024
Section 22-2-2-3 - Definitions; exemptions

As used in this chapter:

"Commissioner" means the commissioner of labor or the commissioner's authorized representative.

"Department" means the department of labor.

"Occupation" means an industry, trade, business, or class of work in which employees are gainfully employed.

"Employer" means any individual, partnership, association, limited liability company, corporation, business trust, the state, or other governmental agency or political subdivision during any work week in which they have two (2) or more employees. However, it shall not include any employer who is subject to the minimum wage provisions of the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201-219).

"Employee" means any person employed or permitted to work or perform any service for remuneration or under any contract of hire, written or oral, express or implied by an employer in any occupation, but shall not include any of the following:

(a) Persons less than sixteen (16) years of age.
(b) Persons engaged in an independently established trade, occupation, profession, or business who, in performing the services in question, are free from control or direction both under a contract of service and in fact.
(c) Persons performing services not in the course of the employing unit's trade or business.
(d) Persons employed on a commission basis.
(e) Persons employed by their own parent, spouse, or child.
(f) Members of any religious order performing any service for that order, any ordained, commissioned, or licensed minister, priest, rabbi, sexton, or Christian Science reader, and volunteers performing services for any religious or charitable organization.
(g) Persons performing services as student nurses in the employ of a hospital or nurses training school while enrolled and regularly attending classes in a nurses training school chartered or approved under law, or students performing services in the employ of persons licensed as both funeral directors and embalmers as a part of their requirements for apprenticeship to secure an embalmer's license or a funeral director's license from the state, or during their attendance at any schools required by law for securing an embalmer's or funeral director's license.
(h) Persons who have completed a four (4) year course in a medical school approved by law when employed as interns or resident physicians by any accredited hospital.
(i) Students performing services for any school, college, or university in which they are enrolled and are regularly attending classes.
(j) Persons with physical or mental disabilities performing services for nonprofit organizations organized primarily for the purpose of providing employment for persons with disabilities or for assisting in their therapy and rehabilitation.
(k) Persons employed as insurance producers, insurance solicitors, and outside salesmen, if all their services are performed for remuneration solely by commission.
(l) Persons performing services for any camping, recreational, or guidance facilities operated by a charitable, religious, or educational nonprofit organization.
(m) Persons engaged in agricultural labor. The term shall include only services performed:
(1) on a farm, 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 furbearing 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 the farm and its tools and equipment if the major part of the service is performed on a farm;
(3) in connection with:
(A) the production or harvesting of maple sugar or maple syrup or any commodity defined as an agricultural commodity in the Agricultural Marketing Act, as amended (12 U.S.C. 1141j);
(B) the raising or harvesting of mushrooms;
(C) the hatching of poultry; or
(D) the operation or maintenance of ditches, canals, reservoirs, or waterways used exclusively for supplying and storing water for farming purposes; and
(4) in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage, to market, or to a carrier for transportation to market, any agricultural or horticultural commodity, but only if service is performed as an incident to ordinary farming operation or, in the case of fruits and vegetables, as an incident to the preparation of fruits and vegetables for market. However, this exception shall not apply to services performed in connection with any agricultural or horticultural commodity after its delivery to a terminal market or processor for preparation or distribution for consumption.

As used in this subdivision, "farm" includes stock, dairy, poultry, fruit, furbearing animals, and truck farms, nurseries, orchards, or greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities.

(n) Those persons employed in executive, administrative, or professional occupations who have the authority to employ or discharge and who earn one hundred fifty dollars ($150) or more a week, and outside salesmen.
(o) Any person not employed for more than four (4) weeks in any four (4) consecutive three (3) month periods.
(p) Any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service under the federal Motor Carrier Act of 1935 (49 U.S.C. 304(3)) or any employee of a carrier subject to IC 8-2.1.
(q) A person engaged in services as a direct seller. The term shall include only services performed:
(1) by a person that is in the trade or business of:
(A) selling, or soliciting the sale of, consumer products or services to any buyer on a buy-sell basis, deposit-commission basis, or similar basis, in any place other than in a permanent retail establishment; or
(B) selling, or soliciting the sale of, consumer products or services in any place other than in a permanent retail establishment;
(2) when substantially all the remuneration, whether or not paid in cash, for the performance of the services is directly related to sales or other output, including the performance of services, rather than the number of hours worked; and
(3) when the services performed by the person are performed pursuant to a written contract and the contract provides that the person who performs the services will not be treated as an employee for tax purposes under the contract.

IC 22-2-2-3

Amended by P.L. 11-2023,SEC. 75, eff. 7/1/2023.
Amended by P.L. 7-2019,SEC. 1, eff. 7/1/2019.
(Formerly: Acts 1965, c.134, s.3; Acts 1967, c.153, s.1.) As amended by Acts1977 , P.L. 259, SEC.1; P.L. 37-1985, SEC.27; P.L. 246-1985, SEC.11; P.L. 23-1988, SEC.110; P.L. 99-1989, SEC.30; P.L. 3-1989, SEC.131; P.L. 133-1990, SEC.1; P.L. 23-1993, SEC.127; P.L. 8-1993, SEC.270; P.L. 178-2003, SEC.8.