288.032. Employer defined, exceptions. - Missouri Statutes

Employer defined, exceptions.

288.032. 1. After December 31, 1977, "employer" means:

(1) Any employing unit which in any calendar quarter in either thecurrent or preceding calendar year paid for service in employment wages ofone thousand five hundred dollars or more except that for the purposes ofthis definition, wages paid for "agricultural labor" as defined inparagraph (a) of subdivision (1) of subsection 12 of section 288.034 andfor "domestic services" as defined in subdivisions (2) and (13) ofsubsection 12 of section 288.034 shall not be considered;

(2) Any employing unit which for some portion of a day in each oftwenty different calendar weeks, whether or not such weeks wereconsecutive, in either the current or the preceding calendar year, had inemployment at least one individual (irrespective of whether the sameindividual was in employment in each such day); except that for thepurposes of this definition, services performed in "agricultural labor" asdefined in paragraph (a) of subdivision (1) of subsection 12 of section288.034 and in "domestic services" as defined in subdivisions (2) and (13)of subsection 12 of section 288.034 shall not be considered;

(3) Any governmental entity for which service in employment asdefined in subsection 7 of section 288.034 is performed;

(4) Any employing unit for which service in employment as defined insubsection 8 of section 288.034 is performed during the current orpreceding calendar year;

(5) Any employing unit for which service in employment as defined inparagraph (b) of subdivision (1) of subsection 12 of section 288.034 isperformed during the current or preceding calendar year;

(6) Any employing unit for which service in employment as defined insubsection 13 of section 288.034 is performed during the current orpreceding calendar year;

(7) Any individual, type of organization or employing unit which hasbeen determined to be a successor pursuant to section 288.110;

(8) Any individual, type of organization or employing unit which haselected to become subject to this law pursuant to subdivision (1) ofsubsection 3 of section 288.080;

(9) Any individual, type of organization or employing unit which,having become an employer, has not pursuant to section 288.080 ceased to bean employer;

(10) Any employing unit subject to the Federal Unemployment Tax Actor which, as a condition for approval of this law for full tax creditagainst the tax imposed by the Federal Unemployment Tax Act, is required,pursuant to such act, to be an employer pursuant to this law.

2. (1) Notwithstanding any other provisions of this law, anyemployer, individual, organization, partnership, corporation, other legalentity or employing unit that meets the definition of "lessor employingunit", as defined in subdivision (5) of this subsection, shall be liablefor contributions on wages paid by the lessor employing unit to individualsperforming services for client lessees of the lessor employing unit.Unless the lessor employing unit has timely complied with the provisions ofsubdivision (3) of this subsection, any employer, individual, organization,partnership, corporation, other legal entity or employing unit which isleasing individuals from any lessor employing unit shall be jointly andseverally liable for any unpaid contributions, interest and penalties duepursuant to this law from any lessor employing unit attributable to wagesfor services performed for the client lessee entity by individuals leasedto the client lessee entity, and the lessor employing unit shall keepseparate records and submit separate quarterly contribution and wagereports for each of its client lessee entities. Delinquent contributions,interest and penalties shall be collected in accordance with the provisionsof this chapter.

(2) Notwithstanding the provisions of subdivision (1) of thissubsection, any governmental entity or nonprofit organization that meetsthe definition of "lessor employing unit", as defined in subdivision (5) ofthis subsection, and has elected to become liable for payments in lieu ofcontributions as provided in subsection 3 of section 288.090, shall pay thedivision payments in lieu of contributions, interest, penalties andsurcharges in accordance with section 288.090 on benefits paid toindividuals performing services for the client lessees of the lessoremploying unit. If the lessor employing unit has not timely complied withthe provisions of subdivision (3) of this subsection, any client lesseeswith services attributable to and performed for the client lessees shall bejointly and severally liable for any unpaid payments in lieu ofcontributions, interest, penalties and surcharges due pursuant to this law.The lessor employing unit shall keep separate records and submit separatequarterly contribution and wage reports for each of its client lessees.Delinquent payments in lieu of contributions, interest, penalties andsurcharges shall be collected in accordance with subsection 3 of section288.090. The election to be liable for payments in lieu of contributionsmade by a governmental entity or nonprofit organization meeting thedefinition of "lessor employing unit" may be terminated by the division inaccordance with subsection 3 of section 288.090.

(3) In order to relieve a client lessees from joint and severalliability and the separate reporting requirements imposed pursuant to thissubsection, any lessor employing unit may post and maintain a surety bondissued by a corporate surety authorized to do business in Missouri in anamount equivalent to the contributions or payments in lieu of contributionsfor which the lessor employing unit was liable in the last calendar year inwhich he or she accrued contributions or payments in lieu of contributions,or one hundred thousand dollars, whichever amount is the greater, to ensureprompt payment of contributions or payments in lieu of contributions,interest, penalties and surcharges for which the lessor employing unit maybe, or becomes, liable pursuant to this law. In lieu of a surety bond, thelessor employing unit may deposit in a depository designated by thedirector, securities with marketable value equivalent to the amountrequired for a surety bond. The securities so deposited shall includeauthorization to the director to sell any securities in an amountsufficient to pay any contributions or payments in lieu of contributions,interest, penalties and surcharges which the lessor employing unit fails topromptly pay when due. In lieu of a surety bond or securities as describedin this subdivision, any lessor employing unit may provide the directorwith an irrevocable letter of credit, as defined in section 409.5-103,RSMo, issued by any state or federally chartered financial institution, inan amount equivalent to the amount required for a surety bond as describedin this subdivision. In lieu of a surety bond, securities or anirrevocable letter of credit, a lessor employing unit may obtain acertificate of deposit issued by any state or federally chartered financialinstitution, in an amount equivalent to the amount required for a suretybond as described in this subdivision. The certificate of deposit shall bepledged to the director until release by the director. As used in thissubdivision, the term "certificate of deposit" means a certificaterepresenting any deposit of funds in a state or federally charteredfinancial institution for a specified period of time which earns interestat a fixed or variable rate, where such funds cannot be withdrawn prior toa specified time without forfeiture of some or all of the earned interest.

(4) Any lessor employing unit which is currently engaged in thebusiness of leasing individuals to client lessees shall comply with theprovisions of subdivision (3) of this subsection by September 28, 1992.Lessor employing units not currently engaged in the business of leasingindividuals to client lessees shall comply with subdivision (3) of thissubsection before entering into a written lease agreement with clientlessees.

(5) As used in this subsection, the term "lessor employing unit"means an independently established business entity, governmental entity asdefined in subsection 1 of section 288.030 or nonprofit organization asdefined in subsection 3 of section 288.090 which, pursuant to a writtenlease agreement between the lessor employing unit and the client lessees,engages in the business of providing individuals to any other employer,individual, organization, partnership, corporation, other legal entity oremploying unit referred to in this subsection as a client lessee.

(6) The provisions of this subsection shall not be applicable toprivate employment agencies who provide their employees to employers on atemporary help basis provided the private employment agencies are liable asemployers for the payment of contributions on wages paid to temporaryworkers so employed.

3. After September 30, 1986, notwithstanding any provision of section288.034, for the purpose of this law, in no event shall a for-hire motorcarrier as regulated by the Missouri division of motor carrier and railroadsafety or whose operations are confined to a commercial zone be determinedto be the employer of a lessor as defined in 49 CFR Section 376.2(f), or ofa driver receiving remuneration from a lessor as defined in 49 CFR Section376.2(f), provided, however, the term "for-hire motor carrier" shall in noevent include an organization described in Section 501(c)(3) of theInternal Revenue Code or any governmental entity.

4. The owner or operator of a beauty salon or similar establishmentshall not be determined to be the employer of a person who utilizes thefacilities of the owner or operator but who receives neither salary, wagesor other compensation from the owner or operator and who pays the owner oroperator rent or other payments for the use of the facilities.

(L. 1951 p. 564 § 288.030, A.L. 1957 p. 531 § 288.031, A.L. 1965 p. 420, A.L. 1972 S.B. 474, A.L. 1977 H.B. 707, A.L. 1986 H.B. 1572, A.L. 1988 H.B. 1485, A.L. 1992 S.B. 626, A.L. 1994 S.B. 559, A.L. 1995 H.B. 300 & 95, A.L. 1996 H.B. 1368, A.L. 2004 H.B. 1268 & 1211, A.L. 2006 H.B. 1456)

Effective 10-01-06

CROSS REFERENCE:

Division of motor carrier and railroad safety abolished, duties and functions transferred to highways and transportation commission and department of transportation, RSMo 226.008