The term "employment" as used in Chapters 27 through 41 of this title does not include:
(1) labor engaged in the seafood industry, which is defined as persons employed in the commercial netting, catching, and gathering of seafood, and the processing of such seafood for the fresh market;
(2) casual labor not in the course of the employing unit's trade or business;
(3) service performed by an individual in the employ of his son, daughter, or spouse and service performed by a child under the age of eighteen in the employ of his father or mother;
(4) service performed in the employ of the United States Government or an instrumentality of the United States immune under the Constitution of the United States from the contributions imposed by Chapters 27 through 41 of this title, except that 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 act, all of the provisions of Chapters 27 through 41 of this title are applicable to those instrumentalities and to services performed for those instrumentalities, in the same manner, to the same extent and on the same terms as to all other employers; provided, that if this State is not certified for a year by the Secretary of Labor or his successors under the Federal Internal Revenue Code, the payments required of those instrumentalities with respect to such year must be refunded by the department from the funds in the same manner and within the same period as is provided in Section 41-31-360 with respect to contributions erroneously collected;
(5) service performed after December 31, 1977, in the employ of a governmental entity referred to in Section 41-27-230(2)(b), if the service is performed by an individual in the exercise of his duties as:
(a) an elected official or as the appointed successor of an elected official;
(b) a member of a legislative body, or a member of the judiciary of a state or political subdivision;
(c) a member of the State National Guard or Air National Guard;
(d) an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or similar emergency; or
(e) in a position that, pursuant to the laws of this State, is designated as a major nontenured policymaking or advisory position, or a policymaking position the performance of the duties of which ordinarily does not require more than eight hours per week;
(6) service with respect to which unemployment compensation is payable under an unemployment compensation system established by an act of Congress; provided, that the department must enter into agreements with the proper agencies under such act of Congress, which agreements shall become effective ten days after publication of it in the manner provided in Section 41-29-130 for general rules, to provide reciprocal treatment to individuals who have after acquiring potential rights to benefits under Chapters 27 through 41 of 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 Chapters 27 through 41 of this title;
(7) service other than service performed as defined in Section 41-27-230(3) performed in the employ of a corporation, community chest, fund or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), a political campaign on behalf of a candidate for public office, provided, that service performed in the employ of an organization operated for the primary purpose of carrying on a trade or business for profit may not be exempt on the ground, that all of its profits are payable to one or more organizations exempt under this paragraph;
(8) service other than service performed as defined in Section 41-27-230(3) that is performed in a calendar quarter in the employ of an organization exempt from federal income tax under Section 501(a) (other than an organization described in Section 401(a)) or under Section 521 of the Federal Internal Revenue Code of 1954, if the remuneration for such service is less than fifty dollars;
(9) the term "employment" does not include:
(a) service performed in the employ of a school, college, or university, if the service is performed by:
(i) a student who is enrolled and is regularly attending classes at the school, college or university; or
(ii) the spouse of a student, if the spouse is advised, at the time the spouse commences to perform the service that the employment of the spouse to perform the service is provided under a program to provide financial assistance to the student by his school, college, or university, and the employment is not covered by a program of unemployment insurance;
(b) service performed by an individual under the age of twenty-two 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 combines academic instruction with work experience, if the service is an integral part of the program, and the institution has certified this to the employer, except that this subparagraph does not apply to service performed in a program established for or on behalf of an employer or group of employers;
(c) service performed in the employ of a hospital, if the service is performed by a patient of the hospital, as defined in Section 41-27-280;
(10) for the purposes of Section 41-27-230(2) and (3), "employment" does not include service performed:
(a) in the direct employ of a church, convention, or association of churches or an organization operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church, convention, or association of churches; or
(b) by an ordained, a commissioned, or a 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 the order; or
(c) 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 providing remunerative work for individuals who because of their impaired physical or mental capacity cannot be absorbed readily in the competitive labor market by an individual receiving rehabilitation or remunerative work; or
(d) before January 1, 1978, for a hospital in a state prison or other state correctional institution by an inmate of the prison or correctional institution and after December 31, 1977, by an inmate of a custodial or penal institution; or
(e) as part of an unemployment work-relief or work-training program assisted or financed in whole or in part by a federal agency, an agency or political subdivision of a state, or an individual receiving work relief or work training, unless a federal law, rule, or regulation mandates unemployment insurance coverage to individuals in a particular work-relief or work-training program; or
(f) by an inmate who participates in a project designated by the Director of the Bureau of Justice Assistance pursuant to Public Law 90-351;
(11) 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;
(12) service performed as a student nurse in the employ of a hospital or a nurses' training school by an individual enrolled and regularly attending classes in a nurses' training school chartered or approved pursuant to state law, and 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 and approved pursuant to state law;
(13) service performed by an individual for an employer as an insurance agent or as an insurance solicitor, if this service is performed by the individual for his employer for remuneration solely by way of commission;
(14) service performed by an individual for an employer as a real estate salesman or agent, if this service is performed by the individual for his employer for remuneration solely by way of commission;
(15) service performed in the employ of a foreign government, including service as a consular or other officer or employee or a nondiplomatic representative;
(16) "agricultural labor" as defined by Section 41-27-120 and when performed by students who are enrolled and regularly attending classes for at least five months during a particular year at a secondary school or at an accredited college, university, or technical school and also when performed by part-time persons who do not qualify as students pursuant to this section but who at the conclusion of their agricultural labor would not qualify for benefits pursuant to the provisions of the department;
(17) service performed as a member of a Native American tribal council or service in a fishing rights related activity of a Native American tribe by a member of the tribe for another member of the tribe or by a qualified Native American entity.
(18) Services performed by a direct seller, provided that:
(a) the individual:
(i) is engaged in the trade or business of selling or soliciting the sale of consumer products, including, but not limited to, services or other intangibles, to any buyer on a buy-sell basis, a deposit-commission basis, or any similar basis for resale by the buyer or any other person in the home or otherwise than in a permanent retail establishment; or
(ii) is engaged in the trade or business of selling or soliciting the sale of consumer products, including, but not limited to, services or other intangibles, in the home or otherwise than in a permanent retail establishment;
(b) substantially all the remuneration, whether or not paid in cash, for the performance of the services described in subitem (a) is directly related to sales or other output, including, but not limited to, the performance of services, rather than to the number of hours worked; and
(c) the services performed by the individual are performed pursuant to a written contract between the individual and the person for whom the services are performed and the contract provides that the individual will not be treated as an employee for federal and state tax purposes.
(19) An individual or entity who owns, or holds under a bona fide lease purchase or installment-purchase agreement, a tractor trailer, tractor, or other vehicle and who, under a valid independent contractor contract provides services as a driver of the tractor trailer, tractor, or other vehicle to a motor carrier.
(20) An individual performing a service for an automobile dealer related to the transportation of individual vehicles to purchasers or sellers of vehicles, including, but not limited to, when:
(a) an automobile auction is the purchaser, seller, or both;
(b) the contract of service contemplates that the service is to be performed personally by the individual;
(c) the individual does not own the vehicle used in connection with the performance of the service;
(d) the service is in the nature of a single transaction with no guarantee of a continuing relationship with the automobile dealer for whom the service is performed; or
(e) any combination of subitems (a) through (d).
HISTORY: 1962 Code Section 68-25; 1952 Code Section 68-22; 1942 Code Section 7035-99; 1936 (39) 1716; 1939 (41) 487; 1940 (41) 1630; 1941 (42) 358, 369; 1946 (44) 1474; 1957 (50) 480; 1961 (52) 166; 1962 (52) 2133; 1971 (57) 950; 1972 (57) 2309; 1973 (58) 248, 669; 1974 (58) 2224; 1976 Act No. 695 Section 1; 1977 Act No. 161 Section 7; 1981 Act No. 108 Section 2; 1982 Act No. 340, Section 5; 1994 Act No. 500, Section 3, eff August 25, 1994; 1995 Act No. 7, Part II, Section 60, eff July 1, 1995 (became law without the Governor's signature January 12, 1995); 2002 Act No. 306, Sections 3A, 3B, eff June 5, 2002; 2010 Act No. 146, Section 19, eff March 30, 2010; 2011 Act No. 3, Section 1, eff March 14, 2011; 2011 Act No. 63, Section 14, eff June 14, 2011; 2014 Act No. 265 (S.1099), Section 1, eff June 6, 2014.
Effect of Amendment
The 1994 amendment added subparagraph (f) to paragraph (10) of this section.
The 1995 amendment revised this section, adding paragraph (10), subparagraph (f), as did the 1994 amendment.
The 2002 amendment, in item (5)(a), inserted "or as the appointed successor of an elected official" and added paragraph (17).
The 2010 amendment substituted "department" for numerous occurrences of "commission", except for at the end of subsections (13) and (14); substituted "department;" for "South Carolina Employment Security Law." at the end of subsection (16); and made other nonsubstantive changes throughout the section.
The first 2011 amendment in subsection (13) deleted "the" before "commission"; and in subsection (14) substituted "service performed by" for "service other than service performed as defined in Section 41-27-230(3) by" and deleted "the" before "commission".
The second 2011 amendment added subsection (18) relating to services provided by a direct seller.
2014 Act No. 265, Section 1, added subsections (19) and (20), relating to exemptions for motor carriers using independent contractors and automobile transportation for dealers.