Identification Number:
SL 60001 TN 4
Intended Audience:See Transmittal Sheet
Originating Office:ORDP OISP
Title:Employment
Type:POMS Transmittals
Program:All Programs
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM
Part SL – State and Local Coverage Handbook
Chapter 600 – Employment
Subchapter 01 – Employment
Transmittal No. 4, 01/29/2020

Audience

Originating Component

OISP

Effective Date

Upon Receipt

Background

We are streamlining policy for clarity, merging sections, and archiving duplicate information. We are also amending the format in several of the sections, standardizing citations and abbreviations, and creating new policy to expand on existing sections for better understanding of content.

Summary of Changes

SL 60001.610 Employee vs. Independent Contractor

  • We added a heading for subsections A (How to determine whether a worker is an employee or independent contractor) and B (Who to contact for specific questions) to the section for clarity.

  • We rephrased language throughout for active voice and clarity.

  • We added a citation to the relevant sections of the Act and regulations.

  • We streamlined the evidence of control and independence under subsection A to have short questions and moved explanatory text regarding written contracts to a noted within that subsection.

  • We added additional information and a cross reference to an RS POMS for contact information for specific sections to Subsection B.

SL 60001.615 Section 530 of the 1978 Revenue Act

We archived this section.

SL 60001.620 Elected Officials

We archived this section and folded the content into SL 60001.621A.

SL 60001.621 Elected Officials and Election Workers

  • We amended the title to include "Election Officials," as we are expanding the section.

  • We reformatted the subsections and moved content that was previously in subsection A, B, and C, to subsection B1, B2, and B3.

  • We clarified the language throughout the section by revising sentence structure, making terms consistent, and adding additional information.

  • We added bullets for each definition in subsection B1 for consistency.

  • We rearranged the bullets in subsection B.2 to place the duties of an election worker in a more logical order.

  • We expanded the section by folding the content formerly in SL 60001.620 into subsection A (first paragraph and folded content formerly in SL 60001.630 into subsection A (2nd paragraph).

SL 60001.630 Justices of the Peace

We archived this section and folded into SL 60001.621 second paragraph. Justice of the peace is an example of an elected official.

SL 60001.635 Police Officers and Firefighters

We archived this section, as information is a duplicate of what is already in SL 30001.345, SL 30001.346, and SL 30001.347.

SL 60001.655 Volunteer Firefighters

We archived this section and folded the content into SL 30001.346 and SL 30001.347.

SL 60001.665 Cooperative Government Employment

  • We amended the title as we are expanding the section by merging it with another section.

  • We reformatted the section by creating subsection A and B. Subsection A contains information that was already in this section, and titled it “Determining whether someone is a Federal or State employee” Subsection B is titled “State-Local” and contains information that was formerly in SL 60001.670. We are archiving section SL 60001.670.

  • We reformatted the text in both subsections to clarify the language, revise citations to be more precise, add additional information for context, and move some text to a note in Subsection A for easier usability.

SL 60001.670 Cooperative State-Local Government Employment

We archived this section and folded the content into newly created subsection B under SL 60001.665.

SL 60001.680 Predecessor-Successor Situations

We are archiving this section and moving it into newly created section SL 300001.387. The 60001 POMS are really about “Employment” while the 30001 POMS are about “Coverage.” Predecessor-Successor issues involve whether coverage continues based on legal changes to a covered entity, and thus do not really have anything to do with employment at all.

SL 60001.681 How Social Security Coverage is Affected in Various Predecessor-Successor Situations

We are archiving this section and moving it into newly created section SL 30001.387 and merging it with content that was also formerly in SL 60001.680.

SL 60001.682 Determining the Status of a Predecessor-Successor Situation and How Social Security Coverage is Affected

We are archiving this section and moving it into newly created section SL 30001.387 and merging it with content that was also formerly in SL 60001.680.

Conversion Table
Old POMS ReferenceNew POMS Reference
SL 60001.615Archived
SL 60001.620SL 60001.621
SL 60001.630SL 60001.621
SL 60001.635Archived
SL 60001.655SL 30001.346; SL 30001.347
SL 60001.670SL 60001.665
SL 60001.680SL 30001.387
SL 60001.681SL 30001.387
SL 60001.682SL 30001.387

SL 60001.610 Employee vs. Independent Contractor

A. How to determine whether a worker is an employee or independent contractor

In cases where The Social Security Administration (SSA) must determine if a worker is an employee or an independent contractor, SSA uses the common law test . To determine whether an individual is an employee or an independent contractor under the common law test (see RS 02101.020; 20 C.F.R. § 404.1007), SSA will consider all evidence of control and independence, which falls into three main categories:

  • Does the entity have the right to direct and control how the worker performs the specific task for which the worker is hired?

  • Does the entity have the right to direct and control the business and financial aspects of the worker’s activities?

  • What is the relationship of the parties?

NOTE: 

A written contract is very important evidence that demonstrates the type of relationship the parties intended to create. A written agreement describing the worker as an independent contractor is evidence of the parties’ intent. The facts and circumstances under which a worker performs services are determinative. The substance of the relationship, not the label, governs the worker’s status

B. Who to contact for specific questions

As noted in RS 02101.810, SSA and the Internal Revenue Service (IRS) have independent authority to apply the common law test to determine if a worker is an employee or an independent contractor. The following standards govern which agency's authority applies:

  • For questions concerning whether a worker is an employee for purposes of coverage under a State's Section 218 Agreement or to resolve earnings discrepancies, SSA will resolve the question.

  • For questions concerning whether a worker is an employee for purposes of the Federal Insurance Contributions Act (FICA) tax withholding, IRS will resolve the question.

SL 60001.621 Elected Officials and Election Workers

A. Elected officials

Individuals elected to serve in State or political subdivision positions are generally employees of the entity in which they are elected. In some situations, the elected official’s duties for that entity require the elected official to perform certain duties for other smaller entities within the jurisdiction of the entity in which he or she was elected (e.g., a county commissioner providing services to an incorporated city within the county). For coverage purposes, the elected official is the employee of the entity in which he or she was elected with respect to his or her official duties.

EXAMPLE: A justice of the peace is often an elected official. He or she is ordinarily a public officer and, therefore, an employee of the political entity for which he or she performs services, see Social Security Ruling 73-58c .

B. Election workers

Election workers are:

  • Hired by the State or local government;

  • Earn a set fee for each day of work;

  • Monitor, preside over, officiate, or assist in public elections during election period; and

  • May be called to duty at a polling station or at a counting center.

To be considered employees, election workers must be subject to a degree of direction and control.

1. Definitions relating to election work

  • Postal voting—the method of voting in an election where paper ballots are distributed to voters and/or returned to the government by mail, instead of being cast in person at a polling station or via an electronic voting system. Postal voting may also be referred to as "vote-by-mail."

  • Absentee voting—the process by which postal voting is permitted because of a person's absence from the usual voting district, illness, or the like.

  • Early voting—voters may visit an election official’s office, or other satellite voting locations, to cast a vote in-person without explaining why they are unable to vote on Election Day.

2. Duties of an election worker

The duties of an election worker may include one or more of the following:

  • Greet voters, assist at the registration book and/or card encoder machine, accompany each voter to a voting machine, verify voter receipt information, or collect voter cards;

  • Assist the Supervising Judge in opening and closing the polling station;

  • Assist the Supervising Judge and share responsibility for operating the polling station;

  • Open envelopes and sort/prepare postal votes or absentee ballots for counting;

  • Count postal votes or absentee ballots if necessary;

  • Operate vote tally machines; and

  • Seal and store postal votes.

3. Extending coverage to election workers

Election workers who count paper postal or absentee ballots at counting centers or at any other facility are due the same coverage or exclusion provisions, see SL 30001.357 deemed for election workers who assist with balloting at the actual polling stations, see Section 218(c)(8) of the Social Security Act.

SL 60001.665 Cooperative Government Employment

A. Determining whether someone is a Federal or State employee

Where an individual performs services in connection with an activity carried on cooperatively by the Federal Government and any State or political subdivision, the Social Security Administration (SSA) determines whether the individual is an employee of the Federal government or of the State or political subdivision, see Social Security Act, (Act) Section 205(p)(1).

NOTE: 

Before November 10, 1988, SSA accepted a determination by the heads of other Federal agencies as to whether such individuals were Federal employees. Such determinations were for Social Security coverage purposes and not for purposes of taxation.

If SSA determines the individual is not an employee of the Federal government, SSA must determine whether the individual's services are covered under the State's Section 218 Agreement or under the mandatory Social Security coverage provisions in Section 210(a)(7)(F) of the Act. If there is a question concerning the identity of an employer, SSA will resolve coverage questions based on all pertinent information. The state administrator should work to provide this information as soon as possible.

B. Determining whether someone is a State or political subdivision employee

An individual may perform services for an organization in connection with an activity carried on cooperatively by the State and one or more political subdivisions or by two or more political subdivisions.

  • If the organization is a separate political subdivision, the coverage of an employee is dependent upon whether the employees of the political subdivision are covered under the State's Section 218 Agreement or the mandatory Section 210(a)(7)(F) Social Security and Medicare coverage provisions.

  • If the organization is not a separate political subdivision, SSA must determine which political subdivision is the employer of the individual performing services, i.e., which entity actually hires, fires, and controls the performance of services. If one entity is the employer, the coverage of an employee is dependent upon whether that political subdivision's positions are covered under a Section 218 Agreement or whether that political subdivision's employees are covered under the Section 210(a)(7)(F) mandatory Social Security and Medicare coverage provisions.

  • If the organization is not a separate political subdivision, it may be an entity created by a joint venture of two or more political subdivisions in which no political subdivision has been designated as the employer. Generally, in such situations, all the participating political subdivisions are considered joint employers. The coverage of services performed by an employee under the State's Section 218 Agreement is then dependent upon the extent to which each of the joint employers has provided coverage for its employees under its Section 218 Agreement. Each employer which has covered its positions under a Section 218 Agreement is liable for reporting its pro rata share of the employee's wages, based on the proportion of the employee's salary each joint employer pays up to the taxable maximum. If the position is not covered as it relates to one or more joint employer, either under the State's Section 218 Agreement or under the mandatory Section 210(a)(7)(F) rules, then the employee receives only partial Social Security coverage based only on the pro-rated portion of the salary that is paid by those employers for whom the position is covered.


SL 60001 TN 4 - Employment - 1/29/2020