Amended 1976
- 1976 Pub. L. 94-566 Pub. L. 94–566, § 115(c)(3), substituted “services performed for nonprofit organizations or governmental entities” for “certain services performed for nonprofit organizations and for State hospitals and institutions of higher education” in section catchline.
Cases: St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772 (1981)
(a) State law requirements For purposes of section 3304(a)(6)—
(1) except as otherwise provided in subsections (b) and (c), the services to which this paragraph applies are—
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(A) service excluded from the term “employment” solely by reason of paragraph (8) of section 3306(c), and
(B) service excluded from the term “employment” solely by reason of paragraph (7) of section 3306(c); and
Amended 1976
- 1976 Pub. L. 94-566 Pub. L. 94–566, § 115(a), struck out “performed in the employ of the State, or any instrumentality of the State or of the State and one or more other States, for a hospital or institution of higher education located in the State, if such service is” after “service”.
(2) the State law shall provide that a governmental entity, including an Indian tribe, or any other organization (or group of governmental entities or other organizations) which, but for the requirements of this paragraph, would be liable for contributions with respect to service to which paragraph (1) applies may elect, for such minimum period and at such time as may be provided by State law, to pay (in lieu of such contributions) into the State unemployment fund amounts equal to the amounts of compensation attributable under the State law to such service. The State law may provide safeguards to ensure that governmental entities or other organizations so electing will make the payments required under such elections.
Amended 1976, 1977, 2000
- 2000 Pub. L. 106-554 Pub. L. 106–554, § 1(a)(7) [title I, § 166(b)(1)], inserted “, including an Indian tribe,” after “the State law shall provide that a governmental entity”.
- 1977 Pub. L. 95-19 Pub. L. 95–19 substituted “(or group of governmental entities or other organizations)” for “(or group of organizations)”.
- 1976 Pub. L. 94-566 Pub. L. 94–566, § 506(a), substituted “a governmental entity or any other organization” for “an organization”, “paragraph (1)” for “paragraph (1)(A)”, and “that governmental entities or other organizations” for “that organizations”.
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(b) Section not to apply to certain service This section shall not apply to service performed—
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(1) in the employ of (A) a church or convention or association of churches, (B) an organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches, or (C) an elementary or secondary school which is operated primarily for religious purposes, which is described in section 501(c)(3), and which is exempt from tax under section 501(a);
Amended 1997
- 1997 Pub. L. 105-33 Pub. L. 105–33, § 5407(a), added subpar. (C).
(2) by a duly ordained, commissioned, or 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 such order;
(3) in the employ of a governmental entity referred to in paragraph (7) of section 3306(c), if such service is performed by an individual in the exercise of his duties—
Amended 1976
- 1976 Pub. L. 94-566 Pub. L. 94–566, § 115(b)(1), substituted reference to services performed in the employ of a governmental entity referred to in paragraph (7) of section 3306(c), if such services are performed by an individual in the exercise of his duties as an elected official, as a member of a legislative body, or a member of the judiciary, of a State or political subdivision thereof, as a member of the State National Guard or Air National Guard, as an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or similar emergency, or in a position which, under or pursuant to the State law, is designated as a major nontenured policymaker 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, for reference to services performed in the employ of a school which is not an institution of higher education.
(A) as an elected official;
(B) as a member of a legislative body, or a member of the judiciary, of a State or political subdivision thereof, or of an Indian tribe;
Amended 2000
- 2000 Pub. L. 106-554 Pub. L. 106–554, § 1(a)(7) [title I, § 166(b)(2)], inserted “, or of an Indian tribe” before semicolon at end.
(C) as a member of the State National Guard or Air 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 which, under or pursuant to the State or tribal law, is designated as (i) a major nontenured policymaking or advisory position, or (ii) a policymaking or advisory position the performance of the duties of which ordinarily does not require more than 8 hours per week; or
Amended 2000
- 2000 Pub. L. 106-554 Pub. L. 106–554, § 1(a)(7) [title I, § 166(b)(3)], inserted “or tribal” after “the State”.
(F) as an election official or election worker if the amount of remuneration received by the individual during the calendar year for services as an election official or election worker is less than $1,000;
Amended 1997
- 1997 Pub. L. 105-33 Pub. L. 105–33, § 5405(a), added subpar. (F).
(4) in a facility conducted for the purpose of carrying out a program of—
(A) rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury, or
(B) providing remunerative work for individuals who because of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market,
by an individual receiving such rehabilitation or remunerative work;
(5) as part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any Federal agency or an agency of a State or political subdivision thereof or of an Indian tribe, by an individual receiving such work relief or work training; and
Amended 2000
- 2000 Pub. L. 106-554 Pub. L. 106–554, § 1(a)(7) [title I, § 166(b)(4)], inserted “or of an Indian tribe” after “an agency of a State or political subdivision thereof”.
(6) by an inmate of a custodial or penal institution.
Amended 1976
- 1976 Pub. L. 94-566 Pub. L. 94–566, § 115(b)(2), substituted “by an inmate of a custodial or penal institution” for “for a hospital in a State prison or other State correctional institution by an inmate of the prison or correctional institution”.
(c) Nonprofit organizations must employ 4 or more This section shall not apply to service performed during any calendar year in the employ of any organization unless on each of some 20 days during such calendar year or the preceding calendar year, each day being in a different calendar week, the total number of individuals who were employed by such organization in employment (determined without regard to section 3306(c)(8) and by excluding service to which this section does not apply by reason of subsection (b)) for some portion of the day (whether or not at the same moment of time) was 4 or more.
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(d) Election by Indian tribe The State law shall provide that an Indian tribe may make contributions for employment as if the employment is within the meaning of section 3306 or make payments in lieu of contributions under this section, and shall provide that an Indian tribe may make separate elections for itself and each subdivision, subsidiary, or business enterprise wholly owned by such Indian tribe. State law may require a tribe to post a payment bond or take other reasonable measures to assure the making of payments in lieu of contributions under this section. Notwithstanding the requirements of section 3306(a)(6), if, within 90 days of having received a notice of delinquency, a tribe fails to make contributions, payments in lieu of contributions, or payment of penalties or interest (at amounts or rates comparable to those applied to all other employers covered under the State law) assessed with respect to such failure, or if the tribe fails to post a required payment bond, then service for the tribe shall not be excepted from employment under section 3306(c)(7) until any such failure is corrected. This subsection shall apply to an Indian tribe within the meaning of section 4(e) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304(e)).
Amended 1976, 2000, 2018
- 2018 Pub. L. 115-141 Pub. L. 115–141 substituted “25 U.S.C. 5304(e)” for “25 U.S.C. 450b(e)”.
- 2000 Pub. L. 106-554 Pub. L. 106–554, § 1(a)(7) [title I, § 166(c)], added subsec. (d).
- 1976 Pub. L. 94-566 Pub. L. 94–566, § 115(c)(2), struck out subsec. (d) which defined “institution of higher education”. See section 3304(f) of this title.