Okla. Stat. tit. 40, § 40-1-210

EMPLOYMENT.

"Employment" means:

(1) Any service, including service in interstate commerce,

performed by:

(a) any officer of a corporation; or

(b) any individual who, under the usual common-law rules

applicable in determining the employer-employee

relationship, as provided in paragraph (14) of this

section, has the status of an employee.

(2) (a) any service, including service in interstate commerce,

performed by any individual other than an individual

who is an employee under paragraph (1) of this section

who performs services for remuneration for any person:

(i) as an agent-driver or commission-driver engaged

in distributing meat products, vegetable

products, fruit products, bakery products,

beverages other than milk, or laundry or dry

Oklahoma Statutes - Title 40. Labor Page 29

cleaning services, for the individual's

principal; or

(ii) as a traveling or city salesperson, other than as

an agent-driver or commission-driver, engaged

upon a full-time basis in the solicitation on

behalf of, and the transmission to, an

individual's principal, except for sideline sales

activities on behalf of some other person, of

orders from wholesalers, retailers, contractors

or operators of hotels, restaurants or other

similar establishments for merchandise for resale

or supplies for use in their business operations;

(b) provided, the term "employment" shall include services

described in divisions (i) and (ii) of subparagraph

(a) of this paragraph if:

(i) the contract of service contemplates that

substantially all of the services are to be

performed personally by such individual;

(ii) the individual does not have a substantial

investment in facilities used in connection with

the performance of the services, other than in

facilities for transportation; and

(iii) the services are not in the nature of a single

transaction that is not part of a continuing

relationship with the person for whom the

services are performed.

(3) Service performed in the employ of this state or any of its

instrumentalities or any political subdivision thereof or any of its

instrumentalities or any instrumentality of more than one of the

foregoing or any instrumentality of any of the foregoing and one or

more other states or political subdivisions; provided, that such

service is excluded from "employment" as defined in the Federal

Unemployment Tax Act, 26 U.S.C., Section 3306(c)(7), and is not

excluded from "employment" under paragraph (7) of this section.

(4) Service performed by an individual in the employ of a

community chest, fund, foundation or corporation, 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, any

political campaign on behalf of any candidate for public office;

provided that such organization had four or more individuals in

employment for some portion of a day in each of twenty (20)

Oklahoma Statutes - Title 40. Labor Page 30

different weeks, whether or not such weeks were consecutive, within

either the calendar year or preceding calendar year, regardless of

whether they were employed at the same moment of time.

(5) Service performed by an individual in agricultural labor as

defined in subparagraph (a) of paragraph (15) of this section when:

(a) the service is performed for a person who:
- Title 40. Labor Page 30

different weeks, whether or not such weeks were consecutive, within

either the calendar year or preceding calendar year, regardless of

whether they were employed at the same moment of time.

(5) Service performed by an individual in agricultural labor as

defined in subparagraph (a) of paragraph (15) of this section when:

(a) the service is performed for a person who:

(i) during any calendar quarter in either the

calendar year or the preceding calendar year,

paid remuneration in cash of Twenty Thousand

Dollars ($20,000.00) or more to individuals

employed in agricultural labor; or

(ii) for some portion of a day in each of twenty (20)

different calendar weeks, whether or not the

weeks were consecutive, in either the calendar

year or the preceding calendar year, employed in

agricultural labor ten or more individuals,

regardless of whether they were employed at the

same moment of time.

(b) for the purposes of this paragraph any individual who

is a member of a crew furnished by a crew leader to

perform service in agricultural labor for any other

person shall be treated as an employee of the crew

leader:

(i) if the crew leader holds a valid certificate of

registration under the Farm Labor Contractor

Registration Act of 1963, Public Law 95-562, 29

U.S.C., Sections 1801 through 1872; or

substantially all the members of the crew operate

or maintain tractors, mechanized harvesting or

crop-dusting equipment, or any other mechanized

equipment, which is provided by the crew leader;

and

(ii) if the individual is not an employee of the other

person within the meaning of paragraph (1) of

this section or subparagraph (d) of this

paragraph.

(c) for the purposes of this paragraph, in the case of any

individual who is furnished by a crew leader to

perform service in agricultural labor for any other

person and who is not treated as an employee of the

crew leader under subparagraph (b) of this paragraph:

(i) the other person and not the crew leader shall be

treated as the employer of the individual; and

(ii) the other person shall be treated as having paid

cash remuneration to the individual in an amount

equal to the amount of cash remuneration paid to

the individual by the crew leader, either on the

Oklahoma Statutes - Title 40. Labor Page 31

individual's own behalf or on behalf of the other

person, for the service in agricultural labor

performed for the other person.

(d) for the purposes of this paragraph, the term "crew

leader" means an individual who:

(i) furnishes individuals to perform service in

agricultural labor for any other person;

(ii) pays, either on the individual's own behalf or on

behalf of another person, the individuals so

furnished by the crew leader for the service in

agricultural labor performed by them; and

(iii) has not entered into a written agreement with the

other person (farm operator) under which the

individual is designated as an employee of the

other person.

(6) The term "employment" shall include domestic service in a

private home, local college club or local chapter of a college

fraternity or sorority performed for a person or entity who paid

cash remuneration of One Thousand Dollars ($1,000.00) or more to

individuals employed in domestic service in any calendar quarter in

the calendar year or the preceding calendar year.

(7) For the purposes of paragraphs (3) and (4) of this section

the term "employment" does not apply to service performed:

(a) in the employ of:
e

fraternity or sorority performed for a person or entity who paid

cash remuneration of One Thousand Dollars ($1,000.00) or more to

individuals employed in domestic service in any calendar quarter in

the calendar year or the preceding calendar year.

(7) For the purposes of paragraphs (3) and (4) of this section

the term "employment" does not apply to service performed:

(a) in the employ of:

(i) a church or convention or association of

churches;

(ii) 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

(iii) an elementary or secondary school which is

operated primarily for religious purposes, which

is described in 26 U.S.C., Section 501(c)(3), and

which is exempt from tax under 26 U.S.C., Section

501(a);

(b) by a duly ordained, commissioned or licensed minister

of a church in the exercise of ministry or by a member

of a religious order in the exercise of duties

required by the order;

(c) in the employ of a governmental entity referred to in

paragraph (3) of this section if the service is

performed by an individual in the exercise of duties:

(i) as an elected official;

(ii) as a member of a legislative body, or a member of

the judiciary of a state or political

subdivision;

Oklahoma Statutes - Title 40. Labor Page 32

(iii) as a member of the State National Guard or Air

National Guard;

(iv) as an employee serving on a temporary basis in

case of fire, storm, snow, earthquake, flood or

similar emergency;

(v) in a position which, under or pursuant to the

laws of this state, is designated as a major

nontenured policymaking or advisory position, or

a policymaking or advisory position the

performance of the duties of which ordinarily

does not require more than eight (8) hours per

week;

(vi) 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

One Thousand Dollars ($1,000.00);

(d) by an individual who is participating or enrolled in a

program of an organization that provides

rehabilitation through work for individuals whose

earning capacity is impaired by age, physical or

mental deficiency, or injury, or a program of an

organization that provides work for individuals who,

because of their impaired mental or physical capacity

cannot be readily absorbed into the competitive labor

market; provided that the services are performed by a

program participant on real property owned or leased

directly by the organization or by a program

participant working under a special certificate issued

by the U.S. Secretary of Labor pursuant to 29 U.S.C.,

Section 214(c) and 29 C.F.R., Section 525.1 et seq.;

(e) 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; or

(f) by an inmate of a custodial or penal institution.

(8) The term "employment" shall include the service of an

individual who is a citizen of the United States, performed outside

the United States, except in Canada, in the employ of an American

employer other than service which is deemed "employment" under the

provisions of paragraph (11) or (12) of this section or the parallel

provisions of another state's law, if:

(a) the employer's principal place of business in the

United States is located in this state;

Oklahoma Statutes - Title 40. Labor Page 33

(b) the employer has no place of business in the United

States, but:
n American

employer other than service which is deemed "employment" under the

provisions of paragraph (11) or (12) of this section or the parallel

provisions of another state's law, if:

(a) the employer's principal place of business in the

United States is located in this state;

Oklahoma Statutes - Title 40. Labor Page 33

(b) the employer has no place of business in the United

States, but:

(i) the employer is an individual who is a resident

of this state;

(ii) the employer is a corporation which is organized

under the laws of this state; or

(iii) the employer is a partnership or a trust and the

number of the partners or trustees who are

residents of this state is greater than the

number who are residents of any one other state;

(c) none of the criteria of subparagraphs (a) and (b) of

this paragraph are met but the employer has elected

coverage in this state or, the employer having failed

to elect coverage in any state, the individual has

filed a claim for benefits, based on such service,

under the laws of this state;

(d) an "American employer", for purposes of this

subsection, means a person who is:

(i) an individual who is a resident of the United

States;

(ii) a partnership if two-thirds (2/3) or more of the

partners are residents of the United States;

(iii) a trust, if all of the trustees are residents of

the United States; or

(iv) a corporation organized under the laws of the

United States or of any state; and

(e) the term "United States", for the purposes of this

subsection, includes the states, the District of

Columbia, the Commonwealth of Puerto Rico and the

Virgin Islands.

(9) Notwithstanding paragraph (11) of this section, all service

performed by an officer or member of the crew of an American vessel

on or in connection with the vessel, if the operating office, from

which the operations of the vessel operating on navigable waters

within, or within and without, the United States are ordinarily and

regularly supervised, managed, directed and controlled is within

this state.

(10) Notwithstanding any other provisions of the Employment

Security Act of 1980, "employment":

(a) includes any service with respect to which a tax is

required to be paid under any federal law imposing a

tax against which credit may be taken for

contributions required to be paid into a state

unemployment fund; and

(b) includes any service which is required to be

"employment" for full tax credit to be allowed against

the tax imposed by the Federal Unemployment Tax Act of

Oklahoma Statutes - Title 40. Labor Page 34

1954, Public Law 591, Chapter 736, as amended, 26

U.S.C., Section 3301 et seq.

(11) The term "employment" shall include an individual's entire

service, performed within or both within and without this state if:

(a) the service is localized in this state; or

(b) the service is not localized in any state but some of

the service is performed in this state and:

(i) the individual's base of operations, or, if there

is no base of operations, then the place from

which the individual's employment is directed or

controlled is in this state; or

(ii) the individual's base of operations or place from

which the service is directed or controlled is

not in any state in which some part of the

service is performed but the individual's

residence is in this state.

(12) (a) Services covered by an election pursuant to Section 3-

203 of this title; and
ace from

which the individual's employment is directed or

controlled is in this state; or

(ii) the individual's base of operations or place from

which the service is directed or controlled is

not in any state in which some part of the

service is performed but the individual's

residence is in this state.

(12) (a) Services covered by an election pursuant to Section 3-

203 of this title; and

(b) services covered by an arrangement pursuant to Section

4-701 et seq. of this title between the Oklahoma

Employment Security Commission and the agency charged

with the administration of any other state or federal

unemployment compensation law, pursuant to which all

services performed by an individual for an employing

unit are deemed to be performed entirely within this

state,

shall be deemed to be employment if the Commission has approved an

election of the employing unit for whom such services are performed,

pursuant to which the entire service of such individual during the

period covered by such election is deemed to be insured work.

(13) Service shall be deemed to be localized within a state if:

(a) the service is performed entirely within such state;

or

(b) the service is performed both within and without such

state, but the service performed without such state is

incidental to the individual's service within the

state; for example, is temporary or transitory in

nature or consists of isolated transactions.

(14) Notwithstanding any other provision of this subsection,

services performed by an individual for wages shall be deemed to be

employment subject to the Employment Security Act of 1980 if the

services are performed by the individual in an employer-employee

relationship with the employer using the 20-factor test used by the

Internal Revenue Service of the United States Department of Treasury

in Revenue Ruling 87-41, 1987-1 C.B. 296. The Oklahoma Employment

Security Commission shall have the exclusive authority to make a

Oklahoma Statutes - Title 40. Labor Page 35

determination of whether an individual is an independent contractor

or employee.

(15) The term "employment" shall not include:

(a) services performed by an individual in agricultural

labor, except as provided under paragraph (5) of this

section. Services performed by an individual who is a

nonresident alien admitted to the United States to

perform agricultural labor, pursuant to 8 U.S.C.,

Sections 1101(a), 1184(c) and 1188. For purposes of

this subparagraph, the term "agricultural labor" means

remunerated service performed in agricultural labor as

defined in the Federal Unemployment Tax Act, 26

U.S.C., Section 3306(k);

(b) domestic service, except as provided under paragraph

(6) of this section, in a private home, local college

club, or local chapter of a college fraternity or

sorority;

(c) service performed by an individual in the employ of

his or her son, daughter, or spouse, and service

performed by a child under the age of twenty-one (21)

in the employ of his or her father or mother, or both

father and mother;
ic service, except as provided under paragraph

(6) of this section, in a private home, local college

club, or local chapter of a college fraternity or

sorority;

(c) service performed by an individual in the employ of

his or her son, daughter, or spouse, and service

performed by a child under the age of twenty-one (21)

in the employ of his or her father or mother, or both

father and mother;

(d) service performed in the employ of the United States

government or an instrumentality of the United States

exempt under the Constitution of the United States

from the contributions imposed by the Employment

Security Act of 1980, except that to the extent that

the Congress of the United States shall permit states

to require any instrumentalities of the United States

to make payments into an unemployment fund under a

state unemployment compensation law, all of the

provisions of the Employment Security Act of 1980

shall be applicable to such instrumentalities, and to

services performed for such instrumentalities, in the

same manner, to the same extent, and on the same terms

as to all other employers, employing units,

individuals and services; provided that if this state

shall not be certified for any year by the Secretary

of Labor of the United States under the Federal

Internal Revenue Code, 26 U.S.C., Section 3304(c), the

payments required of such instrumentalities with

respect to the year shall be refunded by the

Commission from the fund in the same manner and within

the same period as is provided in Section 3-304 of

this title with respect to contributions erroneously

collected;

Oklahoma Statutes - Title 40. Labor Page 36

(e) service with respect to which unemployment

compensation is payable under an unemployment

compensation system established by an act of Congress;

(f) service performed in the employ of a foreign

government, including service as a consul or other

officer or employee or a nondiplomatic representative;

(g) service performed in the employ of an instrumentality

wholly owned by a foreign government:

(i) 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

(ii) if the Commission finds that the United States

Secretary of State has certified to the United

States 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;

(h) service covered by an arrangement between the

Commission and the agency charged with the

administration of any other state or federal

unemployment compensation law pursuant to which all

services performed by an individual for an employing

unit during the period covered by such employing

unit's duly approved election, are deemed to be

performed entirely within the jurisdiction of such

other state or federal agency;

(i) 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-year course in a

medical school chartered or approved pursuant to state

law;

(j) service performed by an individual for a person, firm,

association, trust, partnership or corporation as an

insurance agent, or as an insurance solicitor or as a

licensed real estate agent, if all such service

performed by such individual for such person is

performed for remuneration solely by way of

commissions or fees;

Oklahoma Statutes - Title 40. Labor Page 37
rsuant to state

law;

(j) service performed by an individual for a person, firm,

association, trust, partnership or corporation as an

insurance agent, or as an insurance solicitor or as a

licensed real estate agent, if all such service

performed by such individual for such person is

performed for remuneration solely by way of

commissions or fees;

Oklahoma Statutes - Title 40. Labor Page 37

(k) service performed by an individual under the age of

eighteen (18) in the delivery and distribution of

newspapers or shopping news, not including delivery or

distribution to any point for subsequent delivery or

distribution, and services performed by an individual

eighteen (18) years of age or older who meets the

definition of a "direct seller" as defined in 26

U.S.C., Section 3508(b)(2), that states in pertinent

part:

(i) the individual must be engaged in the delivery or

distribution of newspapers or shopping news,

including any services directly related to such

trade or business,

(ii) substantially all the remuneration, whether or

not paid in cash, for the performance of the

services described in division (i) of this

subparagraph is directly related to sales or

other output, including the performance of

services, rather than the number of hours worked,

and

(iii) the services performed by the individual are

performed pursuant to a written contract between

the person and the person for whom the services

are performed and the contract provides that the

person will not be treated as an employee with

respect to the services;

(l) service performed in the employ of a school, college

or university, if the service is performed:

(i) by a student who is enrolled and is regularly

attending classes at the school, college, or

university, or

(ii) by the spouse of the student, if the spouse is

advised, at the time the spouse commences to

perform the service, that:

(I) the employment of the spouse to perform the

service is provided under a program to

provide financial assistance to the student

by the school, college, or university, and

(II) the employment will not be covered by any

program of unemployment insurance;

(m) service performed by an individual 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 the

Oklahoma Statutes - Title 40. Labor Page 38

institution, which combines academic instruction with

work experience, if the service is an integral part of

the program, and the institution has so certified to

the employer, except that this provision shall not

apply to service performed in a program established

for or on behalf of an employer or group of employers;

(n) service performed in the employ of a hospital, if the

service is performed by a patient of the hospital;

(o) services performed by cooperative extension personnel

holding federal appointments employed by state

institutions of higher learning;

(p) earnings of employees being paid by state warrants who

are presently covered by the Federal Unemployment

Compensation Act, 5 U.S.C., Section 8501 et seq., by

virtue of their federal status;

(q) cosmetology services performed by an individual in a

beauty shop, as defined by Section 199.1 of Title 59

of the Oklahoma Statutes, pursuant to an agreement

whereby the owner of the beauty shop leases or rents

facilities for cosmetology to such individual;

(r) barbering services performed by an individual in a

barber shop, as defined by Section 61.5 of Title 59 of

the Oklahoma Statutes, pursuant to an agreement

whereby the owner of the barber shop leases or rents

facilities for barbering to such individual;
ma Statutes, pursuant to an agreement

whereby the owner of the beauty shop leases or rents

facilities for cosmetology to such individual;

(r) barbering services performed by an individual in a

barber shop, as defined by Section 61.5 of Title 59 of

the Oklahoma Statutes, pursuant to an agreement

whereby the owner of the barber shop leases or rents

facilities for barbering to such individual;

(s) services performed as a participant in a work or

training program administered by the Department of

Human Services;

(t) riding services performed by a jockey and services

performed by a trainer of racehorses in preparation

for and during an approved race meeting licensed by

the Oklahoma Horse Racing Commission;

(u) service performed by an individual whose remuneration

consists solely of commissions, overrides, bonuses,

and differentials related to sales or other output

derived from in-person sales to, or solicitation of

orders from, ultimate consumers primarily in the home,

or otherwise than in a permanent retail establishment;

(v) service performed by a person, commonly referred to as

"owner-operator", who owns or leases a truck-tractor

or truck for hire, provided the owner-operator

actually operates the truck-tractor or truck and,

further, that the entity contracting with the owner-

operator is not the lessor of the truck-tractor or

truck;

(w) services performed as a chopper of cotton who weeds or

thins cotton crops by hand or hoe. This subsection

Oklahoma Statutes - Title 40. Labor Page 39

shall be interpreted and applied consistently with the

Federal Unemployment Tax Act, 26 U.S.C., Sections

3304(a)(6)(A) and 3306(k);

(x) services performed for a private for-profit person or

entity by an individual as a landman:

(i) if the individual is engaged primarily in

negotiating for the acquisition or divestiture of

mineral rights or negotiating business agreements

that provide for the exploration for or

development of minerals,

(ii) if substantially all remuneration paid in cash or

otherwise for the performance of the services is

directly related to the completion by the

individual of the specific tasks contracted for

rather than to the number of hours worked by the

individual, and

(iii) if the services performed by the individual are

performed under a written contract between the

individual and the person for whom the services

are performed; provided that the individual is to

be treated as an independent contractor and not

as an employee with respect to the services

provided under the contract; or

(y) services performed by persons working under an

AmeriCorps grant from the Corporation for National

Service made pursuant to the National and Community

Service Act of 1990 (NCSA) codified at 42 U.S.C.,

Section 12501 et seq.