An Act To Amend the Laws Governing Direct Support Providers of Shared Living Residential Services
Maine Legislature, Session 124, LD 1361
Committee: Labor
Sponsors: MILLS
Amends: Title 26, Section 3306, 26 MRSA §663, 39-A MRSA §102

Legislative Document 
No. 
S:P.496 
In Senate, April 2, 2009 
An Act To Amend the Laws Governing Direct Support Providers of 
Shared Living Residential Services 
Reference to the Committee on Labor suggested and ordered printed. 
Presented by Senator MILLS of Somerset. 
Printl!u on rct.:ydciJ p:lpcr 
9t9(J~ 
JOY J. O'BRIEN 
Secretary of the Senate 
.3 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 26 MRSA §663, sub-§3, ~J, as amended by PL 2007, c. 22, §2, is further 
amended to read: 
J. Members of the family of the employer who reside with and are dependent upon 
the employer; arui 
Sec. 2. 26 MRSA §663, sub-§3, 11<, as amended by PL 2005, c. 255, § 1, is 
further amended to read: 
. 
. 
K; A salaried employee who works in a bona fide executive, administrative or 
professional capacity and whose regular compensation, when converted to an annual 
rate, exceeds 3000 times the State's minimum hourly wage or the annualized rate 
estaq,lished by the United Btates Department of Labor under the federal Fair Labor 
Standards Act, whichever is higher.,.; and 
Sec. 3. 26 MRS A §663, sub-§3, ~ 
is enacted to read: 
L. Any direct support provider or respite care provider who provides shared living 
residential services, also known as foster care, to clients of the Department of Health 
and Human Services with developmental disabilities or autism through a contract 
with an agency authorized by the Department· of Health and Human Services to 
provide such services. 
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Sec. 4.26 MRSA- §1043, sub-§l1, ~F, as amended by PL 2007, c. 230, §1, is 
further amended to read: 
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F. The term "employment" does not include: 
(1) Service performed in the employ of this State, or of any political subdivision 
thereof, or of any instrumentality of this State or its political subdivisions, except 
as provided by this subsection; 
(2) Service performed in the employ of the United States Govemment or an 
instrumentality of the United States immune under the Constitution of the United 
States from the contributions imposed by this chapter, except that on and after 
. January 1, 1940 to the extent that the Congress of the United States has permitted 
states to require any instrumentalities of the United States to make payments into 
an unemploYment compensation fund under a state unemployment compensation 
. or employment security law, all of the provisions of this chapter are 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. If this State is not certified for any 
year by the Secretary of Labor under section 3304 of the Federal Internal 
Revenue Code, the payments required of such instrumentalities with respect to 
that year must be refunded by the. commissioner from the fund in the . same 
manner and within the same period asis provided in section 1225, subsection 5, 
with respect to contributions erroneously collected; 
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(3) Service with respect to which unemployment compensation is payable under 
an unemployment compensation system or employment security system 
established by an Act of Congress. The commissioner is authorized and directed 
to enter into agreements with the proper agencies under such an Act of Congress, 
which agreements become effective 10 days after publication thereof in the 
manner' provided in section 1082, subsection 2, for regulations, to provide 
reciprocal treatment to individuals who have, after acquiring potential rights to 
benefits under this chapter, acquired rights to unemployment compensation under 
such an Act of Congress, or who have, after acquiring potential rights to 
unemployment compensation under such an Act of Congress, acquired rights to 
benefits under this chapter; 
(4) Agricultural labor as defined in subsection 1, except as provided in paragraph 
A-2; 
(4-1) Agricultural labor, if performed by an individual who is an alien, other than 
a citizen of a contiguous country with which the United States has an agreement 
with respect to unemployment compensation, admitted to the United States to 
perform agricultural labor pursuant to the United States Immigration and 
Nationality Act, Sections 214(c) and 101(a) (15) (H); 
(5) Domestic service in a private home, except as provided in paragraph A-3; 
(6) Service performed by an individual in the employ of that individual's son, 
daughter or spouse and service performed by a child under the age ofl8' in the 
employ of that child's father or mother, except for periqds of such service for 
which unemployment insurance contributions are paid; 
(6-1) Services performed by a student attending an elementary, secondary or 
postsecondary school while participating in a cooperative program of education 
. and occupational training or on-the-job training that is part of the school 
curriculum; 
(9) 
Service perfomled with respect to which unemployment compensation is 
payable under the Railroad Unemployment Insurance Act (52 Stat. 1094); 
(l0) 
Services performed in th~ employ of any other state, or any political 
subdivision thereof, or any instrumentality of anyone or luore of the foregoing 
that is wholly owned' by one or more states or political subdivisions and any 
services performed in the employ of any instrumentality of one or more other 
states or their political subdivisions to the extent that the instrumentality is, with 
respect to slich a service, immune under the Constitution of the United States 
from the tax imposed by section 3301 of the Federal Intemal Revenue Code, 
except as provided in paragraph A-I, subparagraph (l); 
(11) 
Service performed in any calendar quarter in the employ of any 
organization exempt from income tax under section 501(a) of the Federal Intemal 
Revenue Code other than an organization described in section 401 (a) or under 
section 521 of the Code, if the remuneration for such service is less than $150; 
(16) Service perfonned in the employ of a foreign government, including service 
as a consular or other officer or employee or a nondiplomatic representative; . 
(17) 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 an 
. instrumentality thereof; and 
(b) If the .commissioner 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 seryice perfonned in 
the foreign country by employees of the United States Governh1ent and of 
instrumentalities thereof; 
(18) 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 4 years' course in a medical school chartered or approved 
pursuant to state law; 
(19) Service performed by an individual for a person as a real estate. broker, a 
real estate sales representative, an insurance agent or an insurance solicitor, if all 
such service performed by that individual for that p~rson is perfonned for 
remuneration solely by way of commission; 
(20) Service performed by an individual under the age of 18 in the delivery or 
distribution of newspapers or shopping news except delivery or distribution to 
any point for subsequent delivery or distribution; 
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(21) Service performed in the employ of any organization that is excluded from 
the term "employment" as defined in the Federal Unemployment Tax Act solely 
by reason of section 3306(c)(7) qr (8) if: 
(a) 
Service is performed in the employ of a church or convention or 
association of churches or an organization that is operated primarily for 
religious purposes and that is operated, supervised, controlled or principally 
supported by a church or convention or association of churches; 
(b) . Service is performed by a duly ordained, commissioned or licensed 
minister of a church in the exercise of that minister's ministry or by a member 
of a religious order in the exercise of duties required by that order; 
(c) Prior to January 1, 1978, service is performed in the employ of a school 
primarily operated as an elementary, secondary or preparatory school for 
higher education that is not an institution of higher education; 
(d) . Service is performed ina facility conducted for the purpose of carrying 
out a program of rehabilitation for individuals whose earning capacity is 
impaired by age or physical or· mental deficiency or injury or 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; 
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(e) Service is perfonned as part of an unemployment work-relief or work-
training program assisted 0r financed in whole or in part by any federal 
agency or an agency of a state or political subdivision thereof by an 
individual receiving that work-relief or work-training; 
(f) Service is perfonned in the employ of a hospital as defined in subsection. 
by a patient of that hospital; 
(g) Services are perfonned prior to January 1, 1978 for a hospital in a state 
prison or other state correctional institution by an inmate of that prison or 
correctional institution and after December 31, 1977 by an inmate of a 
custodial or penal institution; 
(h) Service is perfonned in the employ ofa school, college or university if' 
that service is perfonned by a student who is enrolled and is regularly 
attending classes at such a school, college or university; or 
(i) Prior to January 1, 1978, service is perfonned in the employ of a school 
that is not an institution of higher education and after December 31, 1977, 
service is perfonned iri the employ of a governmental entity referred to in 
paragraph A-I, subparagraph (l) if that service is perfonned 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 of a state; 
(iii) As a member of the State National Guard or Air National Guard; 
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(iv) As an employee serving on a temporary basis in case of fire, stonn, 
snow, earthquake, flood or similar emergency; 
(v) In a position that, 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 perfonnance of the duties of which 
ordinarily does .not require rpore than 8 hours per week; or 
. (vi) 
As an election official or election worker if the amount of 
remuneration received by the individual during the calendar yeaI: for 
services as an election official or election worker is less than $1,000; 
(29) 'Services perfonned by a hairdresser who holds a booth license and operates 
within another-hairdressing establishment if operated under a booth rental 
agreement or other rental agreement; 
(30) Services perfonned by a barber who holds a booth license and operates 
.within another barbering estabiishment if operated under a booth rental 
agreement or other rental agreement; 
(31) Services perfonned by a contract interviewer engaged in marketing research 
or public opinion interviewing when such interviewing is conducted in the field 
or over the telephone on premises not used or controlled by the person for whom 
such contract services are being provided; 
(32) After December 31, 1981, services performed by an individual on a boat 
engaged in catching fish or other forms of aquatic animal life, unless those 
services would be included in the definition of "employment" for federal 
unemployment tax purposes under the Federal Unemployment Act, United States 
Code, Title 26, Section 3306(c), as it may be amended. Also included in this 
exemption are services performed in harvesting shellfish for depuration from 
designated areas as authorized by Title 12, section 6856; 
(33) ,Services performed by a member or leader of a musical group, band or 
orchestra or an entertainer when the services are performed under terms of a 
contract entered into by the leader or an agent of the musical group, band, 
orchestra or entertainer with an employing unit for whom the services are being 
performed, provided the leader or agent is not an employer by reason of 
subsection 9 or of section 1222, subsection 3; 
(34) 
Services performed in the delivery or distribution of newspapers or 
magazines to the ultimate consumer by an individual who is compensated by 
receiving or retaining a commission or profit on the sale of the newspaper or 
magazine; 
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(35) Services performed by a homeworker in the lmitted outerwear industry as 
those terms are defined, on the effective date of this subparagraph, in 29 Code of 
Federal Regulations, Part 530, Section 530.1; 
(36) Service performed by a full-time student, as defined in subsection 30, in the 
employ of an organized camp if the full-time student performed services in the 
employ of the c~mp for less than 13 calendar weeks in the calendar year and the 
camp: 
'(a) Did not operate for more than 7 months in the calendar year and did not 
?perate for more than 7 months in the preceding calendar year; or 
(b) Had average gross receipts for any 6 months in the preceding calendar 
year that were ,not more than 33 1/3% of its average gross receipts for the 
other 6 months in the preceding calendar year; 
(37) Services performed by an individual as a home stitcher as long as that 
employment is not subject to federal unemployment tax; 
(38) Services performed by a person licensed as a guide as required by Title 12, 
section 12853, as long as that employment is not subject to feqeral 
unemployment tax; 
(39) Services performed by a direct syller as defined in 26 United States Code, 
Section 3508, Subsection (b), Paragraph (2). This subparagraph does not include 
a person selling maj or improvements or renovations to the structure of a home, 
business or property; 
(40) Services perfoIDled by lessees of taxicabs, as long as tllat employment is 
not subject to federal unemployment tax. 
TIllS subparagraph may not be 
construed to affect a detemlination regarding a lessee's status as an independent 
contractor for workers' compensation purposes; 
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(41) Services provided by a dance instructor to students of a dance studio when 
there is a contract between the instructor and the studio under which the 
instructor's services are not offered exclusively to the studio, the studio does not 
control the scheduling of the days and times of classes other than beginning and 
end dates, the instructor is paid bYJhe class and not on an hourly or salary basis, 
the compensation rate is the result of negotiation between the instructor and the 
studio and the instructor is given the freedom to develop the curriculum; 
(42) Services perfonned by participants enrolled in programs or projects under 
the national service laws including the federal National and Community Service 
Act of 1990, as amended, 42 United States Code, Section 12501 et seq., and the 
federal Domestic Volunteer Service Act, as amended, 42 United States Code, 
Section 4950 et seq.; 
(43) Services of an author in furnishing text or other material to a publisher 
who: 
. 
(a) Does not control the author's work except to propose topics or to edit 
material submitted;· 
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(b) Does not restrict the author from publishing elsewhere; 
(c) Furnishes neither a place of employment nor equipment for the author's 
use; 
. (d) Does not direct or control the time devoted to the work; and 
(e) Pays only for material that is accepted for publication. 
This exception does not apply if the employment is subject to federal 
unemployment tax; aOO 
(44) Services provided by an owner-operator of a truck or truck tractor while it 
is leased to a motor carrier, as defined in 49 Code of Federal Regulations, 390.5 
(2000), as long as that employment is not subject to federal unemployment tax.,.~ 
and 
(45) Services perfonned by a direct support provider or respite care provider to 
provide shared living residential services, also known as foster care; to clients of 
the Department of Health and Human Services with developmental disabilities or 
autism through a contract with an agency authorized by the Department of Health 
and Human Services to provide such services. 
Sec.S. 39-A MRSA §102, sub-§l1, ~G is enacted to read: 
G. "Employee" does not include any direct support provider or respite care provider 
who provides shared living residential services, also known as foster care, to clients 
of the Department of Health and Human Services with developmental disabilities or 
autism through a contract with an agency authorized by the Department of Health and 
Human Services to provide such services. 
2. 
SUMM~RY 
This bill exempts services perfonned by certain direct support providers, inCluding 
respite care providers, from the defmition of "employmt;:nt" in the laws governing 
unemployment compensation and exempts certain direct support providers from the 
definition of "employee" in the laws governing minimum wages and workers' 
compensation. 
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