on a farm, they may be within the provisions of subparagraph (3) of this paragraph.

(6) Services described in section 210 (f) (5) of the Act. (i) Services not in the course of the employer's trade or business (see § 404.1010) and domestic services in a private home of the employer (see § 404.1027(j)) constitute agricultural labor if such services are performed on a farm operated for profit. The determination whether remuneration for such services performed after 1954 on a farm operated for profit constitutes wages is to be made under § 404.1027 (m) rather than under § 404.1027 (j). The determination whether such services performed before 1955 on a farm operated for profit constitutes employment is to be made under paragraph (d) of this section.

(ii) Generally, a farm is not operated for profit if it is occupied by the employer primarily for residential purposes, or is used primarily for the pleasure of the employer or his family such as for the entertainment of guests or as a hobby of the employer or his family.

(f) Services performed after 1954 and before 1959 in connection with the production or harvesting of certain oleoresinous products. Services performed after 1954 and before 1959 in connection with the production or harvesting of crude gum (oleoresin) from a living tree or the processing of such crude gum into gum spirits of turpentine and gum resin, provided such processing is carried on by the original producer of such crude gum, are excepted from employment. However, the services to which this paragraph relates constitute agricultural labor as defined in section 210(f) of the Act. Thus, any cash remuneration paid for such services, performed after 1954 and before 1959, to the extent that the services are deemed to constitute employment by reason of the rules relating to included and excluded services contained in section 210(b) of the Act (see § 404.1007), is taken into account in applying the test prescribed in § 404.1027 (m) for determining whether cash remuneration paid for agricultural labor constitutes wages. Service as described in this paragraph performed after 1958 is not excepted from employment.

(g) Services performed by certain foreign agricultural workers. (1) Services performed after 1954 and before 1965 by foreign agricultural workers from the Republic of Mexico under contracts en

tered into in accordance with Title V of the Agricultural Act of 1949, as amended, are excepted from employment. Contracts entered into pursuant to the provisions of such Title V may provide for the performance only of services which constitute "agricultural employment." No workers were to be made available under this title after December 31, 1964. For definition of "agricultural employment," see paragraph (c) of this section.

(2) Services performed after 1954 by a foreign agricultural worker lawfully admitted to the United States from the Bahamas, Jamaica, or other British West Indies, on a temporary basis to perform agricultural labor are excepted from employment.

(3) Services performed after 1956 by foreign agricultural workers lawfully admitted to the United States from any foreign country or possession thereof, including the Republic of Mexico, on a temporary basis to perform agricultural labor are excepted from employment.

(h) Services performed by "sharefarmers." The term "employment" does not include services performed by an individual under an arrangement with the owner or tenant of land pursuant to which:

(1) Such individual undertakes to produce agricultural or horticultural commodities (including livestock, bees, poultry, and fur-bearing animals and wildlife) on such land; and

(2) The agricultural or horticultural commodities produced by such individual, or the proceeds therefrom, are to be divided between such individual and such owner or tenant; and

(3) The amount of such individual's share depends on the amount of the agricultural or horticultural commodities produced.

If the arrangement between the parties provides that the individual who undertakes to produce a crop or livestock is to be compensated at a specified rate of pay, or is to receive a fixed sum of money or a stipulated quantity of the commodities to be produced without regard to the amount actually produced, as distinguished from a proportionate share of the crop or livestock, or of the proceeds therefrom, the services performed by such individual in the production of such crop or livestock are not within the exception.

(i) Certain services performed before 1955 the remuneration for which is paid

after 1954. (1) Services of the following character performed before 1955, for which remuneration is paid after 1954, constitute employment under section 210 (a) of the Act:

(i) Agricultural labor, as defined in section 210(f) of the Act (see paragraph (e) of this section), other than services of the character described in section 210 (a)(1) (B) and (C) of the Act in effect prior to 1955 relating to services performed in connection with the production or harvesting of certain oleoresinous products and services performed by certain foreign agricultural workers, which, at the time performed, constituted employment under section 210(a) of the Act, or would have constituted employment except for the provisions of section 210(a)(1) of the Act in effect prior to 1955 and at the time the services were performed.

(ii) Services not in the course of the employer's trade or business (see § 404.1010) which at the time performed constituted employment under section 210 (a) of the Act as in effect before 1955, or would have constituted employment except for the provisions of section 210(a) (3) of the Act as in effect at the time the services were performed.

(2) Services performed before 1955 by foreign agricultural workers lawfully admitted to the United States from the Bahamas, Jamaica, or other British West Indies, on a temporary basis to perform agricultural labor, the remuneration for which is paid after 1954, do not constitute employment under section 210 of the Act, irrespective of whether they constituted employment under that section as in effect at the time the services were performed.

[32 F.R. 7756, May 27, 1967; 32 F.R. 8281, June 9, 1967]

(a) Services of a household nature performed in or about the club rooms or house of a local college club, or in or about the club rooms or house of a local chapter of a college fraternity or sorority, by a student who is enrolled and regularly attending classes at a school, college, or university are excepted from employment. For the purposes of this exception, the statutory tests are the type of services performed by the employee, the character of the place where the services are performed, and the status

of the employee as a student enrolled and regularly attending classes at a school, college, or university.

(b) In general, services of a household nature in or about the club rooms or house of a local college club or local chapter of a college fraternity or sorority include services rendered by cooks, waiters, butlers, maids, janitors, laundresses, furnacemen, handymen, gardeners, housekeepers, and housemothers.

(c) A local college club or local chapter of a college fraternity or sorority does not include an alumni club or chapter. If the club rooms or house of a local college club or local chapter of a college fraternity or sorority is used primarily for the purpose of supplying board or lodging to students or the public as a business enterprise, the services performed therein are not within the exception.

(d) The term "school, college, or university" within the meaning of this exception is to be taken in its commonly or generally accepted sense.

(e) Services of a household nature are not within the exception if performed in or about rooming or lodging houses, boarding houses, clubs (except local college clubs), hotels, hospitals, eleemosynary institutions, or commercial offices or establishments.

(f) For provisions relating to domestic service in a private home of the employer, see § 404.1027(j).

[32 F.R. 7759, May 27, 1967]

§ 404.1010 Services not in the course of employer's trade or business performed prior to 1955.

(a) Services not in the course of the employer's trade or business performed prior to 1955 (except as otherwise noted in this paragraph) by an employee for an employer in a calendar quarter are excepted from employment unless:

(1) The cash remuneration paid for such services performed by the employee for the employer in the calendar quarter is $50 or more; and

(2) Such employee is regularly employed in the calendar quarter by such employer to perform such services.

Unless the tests set forth in subparagraphs (1) and (2) of this paragraph are met the services are excepted from employment. However, services (whether performed after 1954 or before 1955) for which the remuneration is paid after 1954 are not excepted from employment

because they are not performed in the course of the employer's trade or business.

(b) The term "services not in the course of the employer's trade or business" includes services that do not promote or advance the trade or business of the employer. Services performed for a corporation do not come within the exception.

(c) The test relating to cash remuneration of $50 or more is based on the remuneration earned during a calendar quarter rather than on remuneration paid in a calendar quarter. However, for purposes

of determining

whether the test is met, it is also required that the remuneration be paid, although it is immaterial when the remuneration is paid. Furthermore, in determining whether $50 or more has been paid for services not in the course of the employer's trade or business, only cash remuneration for such services shall be taken into account. The term "cash remuneration” includes checks and other monetary media of exchange. Remuneration paid in any other medium, such as lodging, food, or other goods or commodities, is disregarded in determining whether the cash remuneration test is met.

(d) For the purposes of this exception, an individual is deemed to be regularly employed by an employer during a calendar quarter only if:

(1) Such individual performs services not in the course of the employer's trade or business for such employer for some portion of the day on at least 24 days (whether or not consecutive) during such calendar quarter; or

(2) Such individual was regularly employed (as determined under subparagraph (1) of this paragraph) by such employer in the performance of services not in the course of the employer's trade or business during the preceding calendar quarter (including the last calendar quarter of 1950).

(e) In determining whether an employee has performed services not in the course of the employer's trade or business on at least 24 days during a calendar quarter, there shall be counted as 1 day:

(1) Any day or portion thereof on which the employee actually performs such services; and

(2) Any day or portion thereof on which the employee does not perform

services of the prescribed character but with respect to which cash remuneration is paid or payable to the employee for such services, such as a day on which the employee is sick or on vacation. An employee who on a particular day reports for work and, at the direction of his employer, holds himself in readiness to perform services not in the course of the employer's trade or business shall be considered to be engaged in the actual performance of such services on that day. For the purposes of this exception, a day is a period of 24 hours commencing at midnight and ending at midnight.

(f) Services not in the course of the employer's trade or business performed on a farm operated for profit, domestic service in a private home of the employer performed on a farm operated for profit, and domestic service in a private home of the employer performed other than on a farm operated for profit are not within the exception. For provisions relating to services not in the course of the employer's trade or business performed on a farm operated for profit and domestic service in a private home of the employer performed on a farm operated for profit, see § 404.1008. For provisions relating to domestic service in a private home of the employer performed other than on a farm operated for profit, see § 404.1027 (1).

(g) For provisions relating to the exclusion from wages of remuneration paid in any medium other than cash for services not in the course of the employer's trade or business, see § 404.1027 (1).

(h) For provisions relating to the exclusion from wages of cash remuneration paid by an employer in any calendar quarter after 1954 to an employee for service not in the course of the employer's trade or business, see § 404.1027 (i). [32 F.R. 7759, May 27, 1967]

§ 404.1011 Family employment.

(a) Certain services are excepted from employment because of the existence of a family relationship between the employee and the individual employing him. The exceptions are as follows:

(1) Services performed by an individual in the employ of his or her spouse;

(2) (i) Services performed before 1961 by a father or nother in the employ of his or her son or daughter;

(ii) Services not in the course of the employer's trade or business performed after 1960 by a father or mother in the employ of his or her son or daughter;

(iii) Domestic service in a private home of the employer performed after 1960 by a father or mother in the employ of his or her son or daughter unless: (a) The service was performed after December 31, 1967, and

(b) The employer is a surviving spouse or a divorced individual and has not remarried, or has a spouse living in the home where the services are performed who has a mental or physical condition which results in such spouse's being incapable of caring for a son, daughter, stepson, or stepdaughter of such employer for at least 4 continuous weeks in the calendar quarter in which the services are rendered, and

(c) The son, daughter, stepson, or stepdaughter of such employer is living in the home, and

(d) The son, daughter, stepson, or stepdaughter has not attained age 18 or has a mental or physical condition which requires the personal care and supervision of an adult for at least 4 continuous weeks in the calendar quarter in which the services are rendered.

(3) Services performed by a son or daughter under the age of 21 in the employ of his or her father or mother.

(b) Under paragraph (a) (1) and (2) (i) of this section, the exception is conditioned solely upon the family relationship between the employee and the individual employing him. Under paragraph (a)(2) (ii) and (iii) of this section, in addition to the family relationship, there is a further requirement that the services, performed after 1960, shall be services not in the course of the employer's trade or business or shall be domestic service in a private home of the employer. The terms "services not in the course of the employer's trade or business" and "domestic service in a private home of the employer" have the same meaning as when used in § 404.1027 (j), except that it is immaterial under paragraph (a) (2) (ii) and (iii) of this section whether or not such services are performed on a farm operated for profit. Also under paragraph (a) (2) (iii) of this section, there must be a son, daughter, stepson, or stepdaughter of the employer living in the home, either under age 18 or having a mental or physical condition requiring personal care and supervision of an adult for at least 4 continuous weeks in the calendar quarter in which the service is rendered, and the employer is either a surviving spouse or unremarried divorced individual, or has a spouse liv

ing in the home having a mental or physical condition resulting in the spouse's being incapable of caring for the son, daughter, stepson, or stepdaughter for at least 4 continuous weeks in the same calendar quarter. Under paragraph (a) (3) of this section, in addition to the family relationship, there is a further requirement that the son or daughter shall be under the age of 21, and the exception continues only during the time that the son or daughter is under the age of 21.

(c) Services performed in the employ of a corporation are not within the exception. Services performed in the employ of a partnership are not within the exception unless the requisite family relationship exists between the employee and each of the partners comprising the partnership.

[32 F.R. 7760, May 27, 1967, as amended at 34 F.R. 19970, Dec. 20, 1969]

§ 404.1012 Services performed on or in connection with a non-American vessel or aircraft.

(a) Services performed within the United States by an employee for an employer "on or in connection with" a vessel not an American vessel, or "on or in connection with" an aircraft not an American aircraft, are excepted from employment if:

(1) The employee is employed by such employer "on and in connection with" such vessel or aircraft when outside the United States, and

(2) With respect to services performed subsequent to 1954:

(1) The employee is not a citizen of the United States, or

(ii) The employer is not an American employer.

(b) An employee performs services on and in connection with the vessel or aircraft if he performs services on such vessel or aircraft when outside the United States which are also in connection with the vessel or aircraft. Services performed on the vessel outside the United States by employees as officers or members of the crew, or by employees of concessionaires, of the vessel, for example, are performed under such circumstances, since such services are also connected with the vessel. Similarly, services performed on the aircraft outside the United States by employees as officers or members of the crew of the aircraft are performed on and in connection with such aircraft. Services may be performed on the vessel or aircraft, however, which

have no connection with it as in the case of services performed by an employee while on the vessel or aircraft merely as a passenger in the general sense. For example, the services of a buyer in the employ of a department store while he is a passenger on a vessel are not in connection with the vessel.

(c) The expression "on or in connection with" refers not only to services performed on the vessel or aircraft but also to services connected with the vessel or aircraft which are not actually performed on it (for example, shore services performed as officers or members of the crew, or as employees of concessionaires, of the vessel).

(d) Services performed within the United States on or in connection with a non-American vessel or aircraft for an employer by an employee who is not a citizen of the United States are excepted from employment, irrespective of whether the employer is or is not an American employer, provided the employee also is employed by such employer on and in connection with the vessel or aircraft when outside the United States. Services performed within the United States on or in connection with a nonAmerican vessel or aircraft by an employee for an employer who is not an American employer also are excepted from

employment, irrespective of whether the employee is or is not a citizen of the United States, provided the employee also is employed by such employer on and in connection with the vessel or aircraft when outside the United States. Services performed within the United States after 1954 on or in connection with a non-American vessel or aircraft for an American employer by an employee who is a citizen of the United States are not excepted from employment under section 210(a) (4) of the Act, irrespective of whether the employee is employed by such employer on and in connection with the vessel or aircraft when outside the United States. Further, section 210(a) (4) of the Act does not except from employment services performed within the United States for an employer, whether or not an American employer, on or in connection with a non-American vessel or aircraft by an employee, whether or not a citizen of the United States, who is not also employed by such employer on and in connection with the vessel or aircraft when outside the United States.

(e) Services performed prior to 1955 outside the United States on or in connection with a vessel not an American vessel, or on or in connection with an aircraft not an American aircraft, by a citizen of the United States as an employee for an American employer were excepted from employment, if the employee was employed on and in connection with such vessel or aircraft when outside the United States. Services performed after 1954 outside the United States on or in connection with a vessel not an American vessel, or on or in connection with an aircraft not an American aircraft, by a citizen of the United States as an employee for an American employer are not excepted from employment under section 210 (a) (4) of the Act, irrespective of whether the employee is employed on and in connection with such vessel or aircraft when outside the United States. Services performed outside the United States on or in connection with a vessel not an American vessel, or on or in connection with an aircraft not an American aircraft, either by an employee who is not a citizen of the United States or for an employer who is not an American employer, do not constitute employment in any event. (For provisions relating to services performed outside the United States which constitute employment, see § 404.1003 (c).)

(f) Prior to 1955 the citizenship or residence of the employee and the place where the contract of employment is entered into were immaterial for purposes of this exception. After 1954, the citizenship of the employee is material for purposes of this exception. The citizenship or residence of the employer is material only for the purpose of determining whether the vessel is an American vessel. For definitions of "vessel," "American vessel," "aircraft," "American aircraft," "citizen of the United States," and "American employer," see § 404.1003 (c).

[32 F.R. 7760, May 27, 1967]

§ 404.1013 Services in employ of United States or instrumentalities thereof.

(a) In general. This section relates to services performed in the employ of the U.S. Government or in the employ of an instrumentality of the United States. Particular services which are not excepted from employment under one rule set forth in this section may nevertheless be excepted under another rule set forth in this section or under para