ARTICLE 2. Excluded Services [629 - 657]

629.

(a) “Employment” does not include domestic service in a private home, except that “employment” includes domestic service in a private home if performed for an employing unit or a person who paid in cash remuneration of one thousand dollars ($1,000) or more to individuals employed in the domestic service in any calendar quarter in the calendar year or the preceding calendar year.

(b) For purposes of subdivision (a), “employment” does not include work performed by a domestic worker for whom an employment agency, as defined in paragraph (3) of subdivision (a) or subdivision (h) of Section 1812.501 of the Civil Code, procures, offers, refers, provides, or attempts to provide domestic work in a private home, if all of the factors set forth in Section 687.2 characterize the nature of the relationship between the employment agency and the domestic worker for whom the agency procures, offers, refers, provides, or attempts to provide domestic work.

(Amended by Stats. 1993, Ch. 1275, Sec. 2. Effective January 1, 1994.)

630.

Notwithstanding subparagraph (C) of paragraph (1) of subdivision (c) of Section 621 or Section 13004, “employment” does not include service as a transcriber of depositions, court proceedings, and hearings performed away from the office of the person, firm, or association obligated to produce a transcript of these proceedings.

(Added by Stats. 1984, Ch. 371, Sec. 1.)

631.

“Employment” does not include service performed by a child under the age of 18 years in the employ of his father or mother, or service performed by an individual in the employ of his son, daughter, or spouse, except to the extent that the employer and the employee have, pursuant to Section 702.5, elected to make contributions to the Unemployment Compensation Disability Fund.

(Amended by Stats. 1972, Ch. 579.)

632.

“Employment” does not include service performed in the employ of any other state or its political subdivisions or in the employ of the United States government or of any instrumentality of the United States, but if Congress permits the states to require any instrumentalities of the United States to make payments into a fund under a state unemployment compensation act, and to comply with state regulations thereunder, then, to the extent permitted by Congress, all of the provisions of this division shall be applicable 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 by the Secretary of Labor under Section 3304 of the Internal Revenue Code of 1986 for any year, then the payments required of the instrumentalities and their workers with respect to the year shall be refunded from the Unemployment Fund without interest.

(Amended by Stats. 1989, Ch. 1010, Sec. 2.)

633.

(a) For purposes of coverage under Part 2 (commencing with Section 2601) of Division 1, “employment” does not include services performed as an intermittent or adjunct instructor at a postsecondary educational institution which meets the requirements of Article 8 (commencing with Section 94900) of Chapter 7 of Part 59 of the Education Code if the intermittent or adjunct instructor and the employing unit enter a written contract with the following provisions:

(1) That any federal or state income tax liability shall be the responsibility of the party providing the services.

(2) That no disability insurance coverage is provided under the contract.

(3) That the party performing the services certifies that he or she is doing so as a secondary occupation or as a supplemental source of income.

(b) This section shall not apply to services performed under a collective bargaining agreement.

(c) This section shall become operative on January 1, 1997.

(Amended by Stats. 2002, Ch. 29, Sec. 7. Effective January 1, 2003.)

633.1.

For purposes of coverage under Part 2 (commencing with Section 2601), “employment” shall not include:

(a) Services performed for any public entity, nonprofit or for profit entity, organization, or business by an inmate of a state prison under the jurisdiction of the Department of Corrections, by an individual who is otherwise in the custody of the Department of Corrections, or by an individual who is otherwise incarcerated in any of the institutions set forth in Section 2680.

(b) Services performed for any public entity, nonprofit or for profit entity, organization, or business by a ward in the custody of the Department of the Youth Authority.

(Added by Stats. 1993, Ch. 318, Sec. 1. Effective January 1, 1994.)

634.5.

Notwithstanding any other provision of law, a provision excluding service from “employment” does not apply to an entity defined by Section 605 or to a nonprofit organization described by Section 608, except as provided by this section. With respect to an entity defined by Section 605 or a nonprofit organization described by Section 608, “employment” does not include service excluded under Sections 629, 631, 635, and 639 to 648, inclusive, or service performed in any of the following:

(a) In the employ of either of the following:

(1) A church or convention or association of churches.

(2) An organization that is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches.

(b) By a duly ordained, commissioned, or licensed minister of a church in the exercise of his or her ministry or by a member of a religious order in the exercise of duties required by the order.

(c) In the employ of an entity defined by Section 605, if the service is performed by an individual in the exercise of his or her duties as any of the following:

(1) An elected official.

(2) A member of a legislative body or a member of the judiciary of a state or a political subdivision of a state.

(3) A member of the tribal council of an Indian tribe as described by Section 3306(u) of Title 26 of the United States Code.

(4) A member of a State National Guard or Air National Guard.

(5) An employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or other similar emergency.

(6) An employee in a position that, under or pursuant to state or tribal law, is designated as either of the following:

(A) A major nontenured policymaking or advisory position.

(B) A policymaking or advisory position, the performance of the duties of which ordinarily does not require more than eight hours per week.

(7) (A) Except as otherwise provided in subparagraph (B), an election official or election worker if the amount of remuneration reasonably expected to be received by the individual during the calendar year for services as an election official or election worker is less than one thousand dollars ($1,000).

(B) This paragraph shall not take effect unless and until the service is excluded from service to which Section 3309(a)(1) of Title 26 of the United States Code applies by reason of exemption under Section 3309(b) of that act.

(d)  By an individual receiving rehabilitation or remunerative work in a facility conducted for the purpose of carrying out a program of either:

(1) Rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury.

(2) Providing remunerative work for individuals who because of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market.

(e) By an individual receiving work relief or work training as part of an unemployment work relief or work training program assisted or financed in whole or in part by any of the following:

(1) A federal agency.

(2) An agency of a state or a political subdivision thereof.

(3) An Indian tribe, as described by Section 3306(u) of Title 26 of the United States Code.

(f) By a ward or an inmate of a custodial or penal institution pursuant to Article 1 (commencing with Section 2700), Article 4 (commencing with Section 2760), and Article 5 (commencing with Section 2780) of Chapter 5 of, and Article 1 (commencing with Section 2800) of Chapter 6 of, Title 1 of Part 3 of the Penal Code, Section 4649 and Chapter 1 (commencing with Section 4951) of Part 4 of Division 4 of the Public Resources Code, and Sections 883, 884, and 1768 of the Welfare and Institutions Code.

(g) By an individual under the age of 18 years in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution.

(h) By an individual in the sale of newspapers or magazines to ultimate consumers, under an arrangement that includes the following conditions:

(1) The newspapers or magazines are to be sold by the individual at a fixed price.

(2) The individual’s compensation is based on retention of the excess of the price over the amount at which the newspapers or magazines are charged to the individual, whether or not he or she is guaranteed a minimum amount of compensation for the service or is entitled to be credited with the unsold newspapers or magazines that he or she returns.

(i) (1) Except as otherwise provided in paragraph (2), as a substitute employee whose employment does not increase the size of the employer’s normal workforce, whose employment is required by law, and whose employment as a substitute employee does not occur on more than 60 days during the base period.

(2) This subdivision shall not take effect unless and until the United States Secretary of Labor, or his or her designee, finds that this subdivision is in conformity with federal requirements.

(j) As a participant in a national service program carried out using assistance provided under Section 12571 of Title 42 of the United States Code.

(Amended by Stats. 2015, Ch. 303, Sec. 510. (AB 731) Effective January 1, 2016.)

635.

“Employment” does not include service under any unemployment compensation system established by a law of the United States.

(Enacted by Stats. 1953, Ch. 308.)

636.

“Employment” does not include services performed in the employ of either a candidate for public office or a committee as defined in Section 82013 of the Government Code, where such services are performed in connection with an election campaign.

(Amended by Stats. 1976, Ch. 1079.)

637.

“Employment” does not include service performed by any of the following:

(a) The officers and director of a corporation who are the sole shareholders of the corporation and it is not subject to the Federal Unemployment Tax Act.

(b) The officers and director of a corporation engaged in agriculture who are shareholders of the corporation and it is not subject to the Federal Unemployment Tax Act.

(c) An officer of a corporation who is the sole shareholder, or the only shareholder other than his or her spouse, and the service is not subject to the Federal Unemployment Tax Act.

(Amended by Stats. 1989, Ch. 798, Sec. 1. Effective September 26, 1989.)

637.1.

In a private corporation, any individual who is included within the meaning of “employee” pursuant to subdivision (a) of Section 621 and who is the sole shareholder, or the only shareholder other than his or her spouse, may file a statement electing to be excluded from disability insurance coverage for benefits and contributions under this division. The election shall be effective on the first day of the calendar quarter in which the statement is filed. The election shall be effective during the remainder, if any, of the calendar year in which the statement is filed and not less than the two succeeding complete calendar years, and in all subsequent calendar quarters while the statement is in effect.

(Added by Stats. 1989, Ch. 798, Sec. 2. Effective September 26, 1989.)

638.

Sections 639 to 648, inclusive, shall be operative only during such time as the respective type or types of service set forth in those sections are similarly excluded from the definition of “employment,” in the Federal Unemployment Tax Act.

(Amended by Stats. 1971, Ch. 1107.)

639.

“Employment” does not include domestic service in a local college club, or local chapter of a college fraternity or sorority, except that “employment” includes domestic service in a local college club, or local chapter of a college fraternity or sorority if performed for a club, chapter, or person who paid in cash remuneration of one thousand dollars ($1,000) or more to individuals employed in such domestic service in any calendar quarter in the calendar year or the preceding calendar year.

(Amended by Stats. 1978, Ch. 2. Provisions operative as prescribed in Section 638.)

640.

“Employment” does not include service not in the course of the employing unit’s trade or business performed in any calendar quarter by an employee, unless the cash remuneration paid for such service is fifty dollars ($50) or more and such service is performed by an individual who is regularly employed by such employing unit to perform such service. For the purposes of this subdivision, an individual shall be deemed to be regularly employed by an employing unit during a calendar quarter only if on each of some 24 days during that quarter or the preceding calendar quarter such individual performs for such employing unit for some portion of the day service not in the course of the employing unit’s trade or business.

(Enacted by Stats. 1953, Ch. 308. Provisions operative as prescribed in Section 638.)

641.

“Employment” does not include service performed in any calendar quarter in the employ of any organization exempt from federal income tax under Section 501(a) of the Internal Revenue Code of 1954, as amended (other than an organization described in Section 401(a) of that code), or under Section 521 of the Internal Revenue Code of 1954, as amended, if the remuneration for such service is less than fifty dollars ($50).

(Amended by Stats. 1971, Ch. 1107. Provisions operative as prescribed in Section 638.)

642.

“Employment” does not include service performed in the employ of a school, college, or university, if such service is performed:

(a) By a student who is enrolled and is regularly attending classes at such school, college, or university, or

(b) By the spouse of such a student, if such spouse is advised, at the time such spouse commences to perform such service, that:

(1) The employment of such spouse to perform such service is provided under a program to provide financial assistance to such student by such school, college, or university, and

(2) Such employment will not be covered by any program of unemployment insurance or disability compensation.

(Amended by Stats. 1971, Ch. 1107. Provisions operative as prescribed in Section 638.)

642.1.

(a) “Employment” does not include service performed by a full-time student employed by an organized camp, as defined in Section 18897 of the Health and Safety Code and Section 3306(c)(20) of Title 26 of the United States Code.

(b) “Full-time student” for purposes of this section means either of the following:

(1) The individual is enrolled as a full-time student of an educational institution.

(2) The individual is between academic years or terms under both of the following criteria:

(A) The individual was enrolled as a full-time student at an educational institution for the immediately preceding academic year or term.

(B) There is a reasonable assurance that the individual will be so enrolled for the immediately succeeding academic year or term after the period described in subparagraph (A).

(c) For purposes of determining whether an individual is a full-time student under this section the construction given to the corresponding definition of “full-time student” contained in Section 3306(q) of Title 26 of the United States Code shall apply.

(Added by Stats. 1987, Ch. 545, Sec. 1. See operational condition in Section 638.)

643.

“Employment” does not include service performed in the employ of a foreign government (including service as a consular or other officer or employee or a nondiplomatic representative).

(Added by renumbering Section 646 by Stats. 1961, Ch. 2156. Provisions operative as prescribed in Section 638.)

644.

“Employment” does not include service performed in the employ of an instrumentality wholly owned by a foreign government:

(a) If the service is of a character similar to that performed in foreign countries by employees of the United States Government or of an instrumentality thereof; and

(b) If the Secretary of State shall certify to the Secretary of the Treasury that the foreign government, with respect to whose instrumentality exemption is claimed, grants an equivalent exemption with respect to similar service performed in the foreign country by employees of the United States Government and of instrumentalities thereof.

(Added by renumbering Section 647 by Stats. 1961, Ch. 2156. Provisions operative as prescribed in Section 638.)

644.5.

“Employment” does not include services performed in the employ of an international organization.

(Added by Stats. 1973, Ch. 494. See operational condition in Section 638.)

645.

“Employment” does not include 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; and service performed as an intern in the employ of a hospital by an individual who has completed a four years’ course in a medical school chartered or approved pursuant to state law.

(Added by renumbering Section 648 by Stats. 1961, Ch. 2156. Provisions operative as prescribed in Section 638.)

646.

“Employment” does not include service performed by an individual under the age of 22 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 as a student in a full-time program, taken for credit at such institution, which combines academic instruction with work experience, if such service is an integral part of such program, and such institution has so certified to the employer, except that this section shall not apply to service performed in a program established for or on behalf of an employer or group of employers.

(Added by Stats. 1971, Ch. 1107. Provisions operative as prescribed in Section 638.)

647.

“Employment” does not include service performed in the employ of a hospital, if such service is performed by a patient of such hospital.

(Added by Stats. 1971, Ch. 1107. Provisions operative as prescribed in Section 638.)

648.

“Employment” does not include service performed on or in connection with a vessel or aircraft not an American vessel or an American aircraft, if the employee is employed on and in connection with such vessel or aircraft when outside the United States.

(Added by Stats. 1971, Ch. 1107. Provisions operative as prescribed in Section 638.)

649.

“Employment” does not include service performed by an individual if:

(a) Such service is performed by an individual under the age of 18 in the delivery or distribution of newspapers, shopping news, or magazines, not including delivery or distribution to any point for subsequent delivery or distribution, unless such service is performed by an individual under the age of 18 whose principal occupation is regular full-time work and whose attendance at school is incidental to full-time employment.

(b) Such service is performed by an individual in, and at the time of, the sale of newspapers or magazines to ultimate consumers, under an arrangement under which the newspapers or magazines are to be sold by him at a fixed price, his compensation being based on the retention of the excess of such price over the amount at which the newspapers or magazines are charged to him whether or not he is guaranteed a minimum amount of compensation for such service, or is entitled to be credited with the unsold newspapers or magazines turned back.

(Amended by Stats. 1953, Ch. 528.)

650.

“Employment” does not include services performed as a real estate, mineral, oil and gas, or cemetery broker or as a real estate, cemetery or direct sales salesperson, or a yacht broker or salesman, by an individual if all of the following conditions are met:

(a) The individual is licensed under the provisions of Chapter 19 (commencing with Section 9600) of Division 3 of, or Part 1 (commencing with Section 10000) of Division 4 of, the Business and Professions Code, Article 2 (commencing with Section 700) of Chapter 5 of Division 3 of the Harbors and Navigation Code, or is engaged in the trade or business of primarily inperson demonstration and sales presentation of consumer products, including services or other intangibles, in the home or sales 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 from a retail or wholesale establishment.

(b) Substantially all of the remuneration (whether or not paid in cash) for the services performed by that individual is directly related to sales or other output (including the performance of services) rather than to the number of hours worked by that individual.

(c) The services performed by the individual are performed pursuant to a written contract between that individual and the person for whom the services are performed and the contract provides that the individual will not be treated as an employee with respect to those services for state tax purposes.

(Amended by Stats. 1998, Ch. 475, Sec. 6. Effective January 1, 1999.)

651.

“Employment” does not include services performed by an individual as a golf caddy in caddying or carrying a golf player’s clubs.

(Amended by Stats. 1957, Ch. 595.)

652.

“Employment” does not include service performed as an elected or appointed official in any calendar quarter in the employ of any nonprofit fraternal corporation or association which is not subject to the Federal Unemployment Tax Act if the remuneration for such service does not exceed one hundred dollars ($100) a month.

The provisions of this section shall be applicable with retrospective effect.

(Amended by Stats. 1961, Ch. 2164.)

653.

“Employment” does not include services performed in the employ of a baseball club pursuant to a contract or agreement under which the baseball player agrees to perform for expenses and a share of the profits of the club, rather than for a fixed salary.

(Added by Stats. 1955, Ch. 1864.)

654.

“Employment” does not include service performed by a free-lance jockey or exercise boy who is regularly licensed by the California Horse Racing Board.

(Added by Stats. 1957, Ch. 620.)

655.

“Employment” does not include services performed by a professional athlete who is neither a citizen of nor a resident of the United States or any state when he comes to the State of California for occasional or incidental professional engagements.

(Added by Stats. 1959, Ch. 746.)

656.

“Employment” does not include professional services performed by a consultant working as an independent contractor.

For the purpose of this section, there shall be a rebuttable presumption that services provided by an individual engaged in work requiring specialized knowledge and skills attained through completion of recognized courses of instruction or experience are rendered as an independent contractor. These services shall be limited to those provided by attorneys, physicians, dentists, engineers, architects, accountants, chiropractors, and the various types of physical, chemical, natural, and biological scientists. Professional services shall not include services generally provided by persons who do not have a degree from a four-year institution of higher learning relating to the specialized knowledge and skills of the professional service being provided.

For the purposes of this section, the rebuttable presumption shall not apply to an individual who enters into a contract agreement with the recipient of the professional services which establishes an employer-employee relationship. However, the existence of a contract between a nonprofit, licensed, primary care clinic, as defined in subdivision (a) of Section 1204 of the Health and Safety Code, and a health care practitioner who is licensed as a physician and surgeon, osteopathic physician and surgeon, podiatrist, optometrist, chiropractor, or psychologist shall not constitute an employer-employee relationship if the contract stipulates that the professional services rendered to the clinic are by an independent contractor, not an employee. Independent contractors who conform to the provisions of this section or primary care clinics that contract with these individuals or organizations shall not be liable for any payments that may be required under an employer-employee relationship pursuant to this code.

(Amended by Stats. 1997, Ch. 39, Sec. 1. Effective January 1, 1998.)

657.

The department shall adopt regulations by July 1, 1996, to establish clear criteria which specify under what conditions amateur athletic officials may be considered employees.

(Added by Stats. 1995, Ch. 725, Sec. 2. Effective January 1, 1996.)