February 25, 2004, Introduced by Reps. Caswell, Brandenburg, Palmer, Drolet, Milosch, Nitz, Garfield, Bradstreet, Emmons, LaJoy, Taub, Tabor, Wenke, Stakoe, Casperson, Voorhees, Kooiman, Meyer, Caul, Pappageorge, Hummel, Mortimer and Sheen and referred to the Committee on Employment Relations, Training and Safety.
A bill to amend 1936 (Ex Sess) PA 1, entitled
"Michigan employment security act,"
by amending section 42 (MCL 421.42).
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 42. (1) "Employment" means service, including service
2 in interstate commerce, performed for remuneration or under any
3 contract of hire, written or oral, express or implied.
4 (2) "Employment" includes an individual's entire service,
5 performed within or both within and without this state if any of
6 the following apply:
7 (a) The service is
localized in this state. Service shall
8 be deemed to be is localized within a state if the service is
9 performed entirely within the state; or the service is performed
10 both within and without
outside the state, but the service
11 performed without outside
the state is incidental to the
1 individual's service
within the state, such as service which
2 that is temporary or transitory in nature or consists of isolated
3 transactions.
4 (b) The service is not localized in a state but some of the
5 service performed in this state and the base of operations, or,
6 if there is not a base of operations, then the place from which
7 the service is directed or controlled, is in this state; or the
8 base of operations or place from which the service is directed or
9 controlled is not in a state in which some part of the service is
10 performed, but the individual's residence is in this state.
11 (c) After December 31, 1964, the service is not localized in
12 any state but is performed by an employee on or in connection
13 with an American aircraft, if either the contract of service is
14 entered into within this state or if the contract of service is
15 not entered into within this state or within any other state and
16 during the performance of the contract of service and while the
17 employee is employed on the aircraft, it touches at an airfield
18 in this state, and the employee is employed on and in connection
19 with the aircraft when outside the United States. The commission
20 may enter into reciprocal agreements with other states with
21 respect to aircraft
which aircrafts that touch airfields in
22 more than 1 state.
23 (3) Service performed within this state but not covered
24 under subsection (2) and
not excluded under section 43 shall be
25 deemed to be is employment subject to this act if
contributions
26 are not required and paid with respect to those services under an
27 unemployment compensation law of any other state or of the
1 federal government.
2 (4) Services, not covered under subsection (2), performed
3 entirely without outside
this state, for which contributions
4 are not required and paid under an unemployment compensation law
5 of any other state or of
the federal government, shall be deemed
6 to be are employment subject to this act if the
commission
7 approves the election of the employer for whom the services are
8 performed that the entire
service of the individual shall be
9 deemed to be is employment subject to this act. Such an
10 election may be canceled by the employer by filing a written
11 notice with the commission before January 30 of any year stating
12 the employer's desire to cancel the election or at any time by
13 submitting to the commission satisfactory proof that the services
14 designated in the election are covered by an unemployment
15 compensation law of another state or of the federal government,
16 or if the services are
covered by an arrangement pursuant to
17 under section 11 between the commission and the agency charged
18 with the administration of any other state or federal
19 unemployment compensation
law, pursuant according to which all
20 services performed by an individual for an employing unit are
21 deemed to be considered performed entirely within the
state,
22 shall be deemed to be
considered employment if the commission
23 has approved an election of the employing unit for which the
24 services are performed, pursuant
according to which the entire
25 service of the individual during the period covered by the
26 election is deemed to
be employment.
27 (5) Services performed by an individual for remuneration
1 shall not be deemed
to be are not considered
employment subject
2 to this act, unless the individual is under the employer's
3 control or direction as to the performance of the services both
4 under a contract for hire and in fact. Service performed by an
5 individual for
remuneration under an exclusive contract which
6 that provides for the individual's control and direction by a
7 person, firm, or corporation possessing a public service permit
8 or by a certificated motor carrier transporting goods or property
9 for hire shall be
deemed is considered employment subject to
10 this act. Service performed by an individual who by lease,
11 contract, or arrangement places at the disposal of a person,
12 firm, or corporation a piece of motor vehicle equipment and under
13 a contract of hire, which
that provides for the individual's
14 control and direction, is engaged by the person, firm, or
15 corporation to operate
the motor vehicle equipment shall be
16 deemed to be is employment subject to this act.
17 (6) Notwithstanding section 43, services performed for an
18 employing unit, for which the employing unit is liable for
19 federal tax against which credit may be taken for contributions
20 required to be paid into a state unemployment compensation fund,
21 shall be deemed to
constitute are employment for
the purposes
22 of this act, but only to the extent that the services constitute
23 employment with respect to which federal tax is payable.
24 Notwithstanding any other provision of this act or any amendatory
25 act, services performed
for an employing unit which that are
26 required to be covered under this act, as a condition for its
27 certification by the United States secretary of labor, shall
1 constitute employment for the purposes of this act. The
2 commission may waive the provisions of this subsection with
3 respect to services performed within this state if the employing
4 unit is an employer solely by reason of section 41(7) and
5 establishes that the services are covered by the election of the
6 employing unit under any other state unemployment compensation
7 law. This subsection shall not apply to the exceptions provided
8 in section 43(q).
9 (7) Notwithstanding subsection (2) all service performed
10 after December 31, 1964, by an officer or member of the crew of
11 an American vessel on or
in connection with the vessel is deemed
12 to be employment subject to this act if the operating
office,
13 from which the operations of the vessel operating on navigable
14 waters within, or within
and without outside, the United States
15 are ordinarily and regularly supervised, managed, directed, and
16 controlled, is within this state.
17 (8)(a) Service performed before January 1, 1978, by an
18 individual in the classified civil service of this state and
19 service performed by an individual for a school district, a
20 community college district, a school or educational facility
21 owned or operated by the state other than an institution of
22 higher education, or a political subdivision of the state, except
23 a political subdivision which
that has a local unemployment
24 compensation system as provided in former section 13j, is
25 employment subject to this act.
26 (b) Service performed after December 31, 1977, in the employ
27 of a governmental entity as defined in section 50a is employment
1 subject to this act.
2 (9) "Employment" includes service performed after December
3 31, 1971, by an individual in the employ of this state or any of
4 its instrumentalities for a state hospital or state institution
5 of higher education, or in the employ of this state and 1 or more
6 other states or their instrumentalities for a hospital or
7 institution of higher education located in this state. Coverage
8 of services performed for these hospitals and institutions of
9 higher education after December 31, 1977, shall be determined
10 pursuant according to section 42(8)(b) subsection
(8)(b).
11 (10) "Employment" includes service performed after December
12 31, 1971, by an individual in the employ of a religious,
13 charitable, educational,
or other organization which that is
14 excluded from the term "employment" as defined in the federal
15 unemployment tax act, 26 USC 3301 to 3311, solely by reason of
16 section 3306(c)(8) of the federal unemployment tax act, 26 USC
17 3306.
18 (11) "Employment" includes service performed after December
19 31, 1971, by an individual for his principal as an agent driver
20 or commission driver engaged in distributing beverages, meat,
21 vegetable, fruit, bakery, dairy, or other food products, or
22 laundry or dry cleaning services; or as a traveling or city
23 salesman, other than as an agent driver or commission driver,
24 engaged upon a full-time basis in the solicitation on behalf of,
25 and the transmission to, his principal except for sideline sales
26 activities on behalf of some other person, of orders from
27 wholesalers, retailers, contractors, operators of hotels,
1 restaurants, or other similar establishments for merchandise for
2 resale or supplies for use in their business operations. For
3 purposes of this subsection, "employment" includes services
4 performed after December 31, 1971, only if all of the following
5 apply:
6 (a) The contract of service contemplates that substantially
7 all of the services are to be performed personally by the
8 individual.
9 (b) The individual does not have a substantial investment in
10 facilities used in connection with the performance of the
11 services other than in facilities for transportation.
12 (c) The services are not in the nature of a single
13 transaction which that
is not part of a continuing relationship
14 with the person for whom the services are performed.
15 (12) "Employment" includes service performed by a United
16 States citizen outside the United States after December 31, 1971,
17 except in Canada, and in the Virgin Islands after December 31,
18 1971, and before January 1 of the year following the year in
19 which the United States secretary of labor approves the
20 unemployment compensation law of the Virgin Islands under section
21 3304(a) of the internal revenue code of 1986, 26 USC 3304, while
22 in the employ of an American employer and is other than service
23 which that is employment pursuant according
to subsection (2)
24 or a parallel provision of another state's law, if 1 of the
25 following requirements of subdivision (a), (b), or (c) are met:
26 (a) The employer's principal place of business in the United
27 States is located in this state.
1 (b) The employer does not have a place of business in the
2 United States, but the employer is any of the following:
3 (i) An individual who is a resident of this state.
4 (ii) A corporation which that is
organized under the laws
5 of this state.
6 (iii) A partnership or a trust and the number of the
7 partners or trustees who are residents of this state is greater
8 than the number who are
residents of any one 1 other state.
9 (c) None of the criteria
of subdivisions (a) and (b) is
10 are met but the employer elected coverage of the service under
11 this act, or the employer failed to elect coverage in any state
12 and the individual filed a claim for benefits based on the
13 service under the law of this state.
14 (d) An "American employer", for purposes of this subsection,
15 means a person who is one
1 of the following:
16 (i) An individual who is a resident of the United States.
17 (ii) A partnership if 2/3 or more of the partners are
18 residents of the United States.
19 (iii) A trust, if all of the trustees are residents of the
20 United States.
21 (iv) A corporation organized under the laws of the United
22 States or of any state.
23 (e) As used in this subsection, "United States" includes the
24 states, the District of Columbia, and the Commonwealth of Puerto
25 Rico.
26 (13) Notwithstanding any other provision of this act, the
27 term
"employment" shall include includes an individual's
1 service, wherever performed within the United States, the Virgin
2 Islands, or Canada, if the service is not covered under the
3 unemployment compensation law of any other state, the Virgin
4 Islands, or Canada, and the place from which the service is
5 directed or controlled is in this state.
6 (14) "Employment" does not include service performed in an
7 Americorps program.