An Act To Provide That Persons Hiring Assistants To Provide Home Care for Relatives Are Not Employers for Purposes of Unemployment Compensation Laws
Maine Legislature, Session 125, LD 1600
Committee: Labor, Commerce, Research and Economic Development
Sponsors: WATERHOUSE, HASTINGS, NUTTING, SARTY
Amends: 26 MRSA §1043

Legislative Document 
No. 1600 
H.P. 1208 
House of Representatives, December 16, 2011 
An Act To Provide That Persons Hiring Assistants To Provide 
Home Care for Relatives Are Not Employers for Purposes of 
Unemployment Compensation Laws 
(EMERGENCY) 
Approved for introduction by a majority of the Legislative Council pursuant to Joint Rule 
203. 
Received by the Clerk of the House on December 14, 2011.  Referred to the Committee on 
Labor, Commerce, Research and Economic Development pursuant to Joint Rule 308.2 and 
ordered printed pursuant to Joint Rule 401. 
HEATHER J.R. PRIEST 
Clerk 
Presented by Representative WATERHOUSE of Bridgton. 
Cosponsored by Senator HASTINGS of Oxford and 
Representatives: Speaker NUTTING of Oakland, SARTY of Denmark. 
Emergency preamble. Whereas, acts and resolves of the Legislature do not 
become effective until 90 days after adjournment unless enacted as emergencies; and 
Whereas, under current unemployment compensation laws certain persons hired to 
provide home care assistance are considered employees; and 
Whereas, coverage of those home care assistants under the unemployment 
compensation laws has a burdensome effect on families in need of home care services 
that needs to be addressed immediately; and 
Whereas, in the judgment of the Legislature, these facts create an emergency within 
the meaning of the Constitution of Maine and require the following legislation as 
immediately necessary for the preservation of the public peace, health and safety; now, 
therefore, 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  26 MRSA §1043, sub-§11, ¶F, as amended by PL 2011, c. 66, §1 and c. 
70, §1, is repealed and the following enacted in its place: 
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 Government or an 
instrumentality of the United States immune under the United States Constitution 
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 as is provided in section 1225, subsection 5, 
with respect to contributions erroneously collected;  
(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)  Services performed by an individual who is an alien 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 of 18 in the 
employ of that child's father or mother, except for periods 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 performed with respect to which unemployment compensation is 
payable under the federal Railroad Unemployment Insurance Act; 
(10)  Services performed in the employ of any other state, or any political 
subdivision thereof, or any instrumentality of any one or more 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 such a service, immune under the United States Constitution from the 
tax imposed by Section 3301 of the federal Internal Revenue Code, except as 
provided in paragraph A-1, subparagraph (1);  
(11)  Service performed in any calendar quarter in the employ of any 
organization exempt from income tax under Section 501(a) of the federal Internal 
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 performed 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 service performed in 
the foreign country by employees of the United States Government and of 
instrumentalities thereof; 
(18)  Service performed as a student nurse in the employ of a hospital or a nurse 
training school by an individual who is enrolled and is regularly attending classes 
in a nurse 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-year 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 person is performed 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; 
(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 26 United States Code, Section 3306(c)(7) or (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 in a 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; 
(e)  Service is performed 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 by an 
individual receiving that relief or training; 
(f)  Service is performed in the employ of a hospital as defined in subsection 
by a patient of that hospital; 
(g)  Services are performed 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 or after December 31, 1977 by an inmate of a 
custodial or penal institution; 
(h)  Service is performed in the employ of a school, college or university if 
that service is performed 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 performed in the employ of a school 
that is not an institution of higher education or after December 31, 1977, 
service is performed in the employ of a governmental entity referred to in 
paragraph A-1, subparagraph (1) if that 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 of a state; 
(iii)  As a member of the Maine Army National Guard or the Maine 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 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 performance of the duties of which 
ordinarily does not require more 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 year for 
services as an election official or election worker is less than $1,000; 
(29)  Services performed under a booth rental agreement or other rental 
agreement by: 
(a)  A hairdresser who holds a booth license and operates within another 
hairdressing establishment; or 
(b)  A tattoo artist if the services performed by the tattoo artist are not subject 
to federal unemployment tax; 
(30)  Services performed by a barber who holds a booth license and operates 
within another barbering establishment if operated under a booth rental 
agreement or other rental agreement; 
(31)  Services performed 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 Tax Act, 26 
United States Code, 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, as long as 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; 
(35)  Services performed by a homeworker in the knitted 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)  Services performed by a full-time student, as defined in subsection 30, in 
the employ of a youth camp licensed under Title 22, section 2495 if the full-time 
student performed services in the employ of the camp 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 
operate 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 federal 
unemployment tax; 
(39)  Services performed by a direct seller as defined in 26 United States Code, 
Section 3508(b)(2).  This subparagraph does not include a person selling major 
improvements or renovations to the structure of a home, business or property; 
(40)  Services performed by lessees of taxicabs, as long as that employment is not 
subject to federal unemployment tax.  This subparagraph may not be construed to 
affect a determination regarding a lessee's status as an independent contractor for 
workers' compensation purposes; 
(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 by the 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 performed by participants enrolled in programs or projects under 
the national service laws including the 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; 
(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; 
(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; 
(45)  Services performed by a professional investigator, as defined in Title 32, 
section 8103, subsection 5, as long as that employment is not subject to federal 
unemployment tax and the following requirements are met: 
(a)  There is a written contract between the professional investigator and the 
party requesting services; 
(b)  The professional investigator offering the services operates 
independently of the party requesting services, except for the time frame and 
quality of finished work as specified in the contract; 
(c)  Compensation for services is negotiated between the 2 parties and is paid 
for each service performed; and 
(d)  The party requesting services furnishes neither equipment nor the place 
of employment to the professional investigator; and 
(46)  Personal care services or health care services performed in the home for an 
individual by a person retained to provide those services by the individual, a 
family member of the individual or a person sharing a household with the 
individual. 
Emergency clause.  In view of the emergency cited in the preamble, this 
legislation takes effect when approved. 
SUMMARY 
This bill provides that personal care services or health care services performed in the 
home for an individual by a person retained to provide those services by the individual, a 
family member of the individual or a person sharing a household with the individual are 
not considered employment for the purposes of the unemployment compensation laws.  
The bill also corrects cross-references and updates language to incorporate subsequent 
statutory changes.