Published: 2015-07-09
Key Benefits:
“Employer” means any employing unit, which for some portion of a day, has within the current calendar year or had within the preceding calendar year in employment one or more employees and pays wages for employment in excess of one hundred dollars ($100) during any calendar quarter.
(Amended by Stats. 1971, Ch. 1107.)
“Employer” also means any employing unit, for which services are performed that are included in “employment” solely for the purposes of Part 2 (commencing with Section 2601) of this division, which for some portion of a day, has within the current calendar year or had within the preceding calendar year one or more employees performing such services, and pays wages for such service in excess of one hundred dollars ($100) during any calendar quarter.
(Amended by Stats. 1971, Ch. 1107.)
“Employer” also means any employing unit for which service is performed in “employment” as defined by Section 605.
(Amended by Stats. 1978, Ch. 2.)
“Employer” means any employing unit which pursuant to a collective bargaining agreement between an employer and a labor organization in the motion picture, radio, or television industry, pays wages as provided in Section 926.5.
(Added by Stats. 1971, Ch. 873.)
(a) Notwithstanding Sections 606.5 and 678, for the purposes of this code, “employer” means any employing unit that is a motion picture payroll services company that pays and controls the payment of wages of a motion picture production worker for services either to a motion picture production company or to an allied motion picture services company, and files a timely statement of its intent to be the employer of motion picture production workers pursuant to subdivision (b).
(b) (1) Any employing unit meeting the requirements of a motion picture payroll services company that intends to be treated as an employer of motion picture production workers pursuant to subdivision (a) shall file a statement with the department that declares its intent to be the employer of motion picture production workers, pursuant to this section, within 15 days after first paying wages to the workers. The statement shall include identification of each affiliated entity.
(2) Any employing unit operating as a motion picture payroll services company as of January 1, 2007, that intends to be treated as an employer of motion picture production workers pursuant to this section, shall file a statement with the department that declares its intent to be the employer of motion picture production workers, pursuant to this section, by January 15, 2007. The statement shall include identification of each affiliated entity.
(3) Any motion picture payroll company that quits business shall:
(A) Within 10 days of quitting business:
(i) File with the director a final return and report of wages of its workers, as required by Section 1116.
(ii) File all statements required by this subdivision.
(B) Forty-five days in advance of quitting business, notify each motion picture production company and allied motion picture services company, with respect to which they have been treated as the employer of the motion picture production workers, of its intent to quit business.
(4) The director may prevent a motion picture payroll services company that fails to file a timely statement from being treated as an employer of motion picture production workers, for a period not to exceed the period for which the statement is required.
(5) Any statement filed by a motion picture payroll services company pursuant to this subdivision shall be applied to each affiliated entity of the motion picture payroll services company in existence at the time the statement is filed.
(c) For each rating period beginning on or after January 1, 2007, in which an employer operating as a motion picture payroll services company obtains or attempts to obtain a more favorable rate of contributions under this section in a manner that is due to deliberate ignorance, reckless disregard, fraud, intent to evade, misrepresentation, or willful nondisclosure, the director shall assign the maximum contribution rate plus 2 percent for each applicable rating period, the current rating period, and the subsequent rating period. Contributions paid in excess of the maximum rate under this section shall not be credited to the employing unit’s reserve account.
(d) (1) On and after January 1, 2007, whenever a motion picture payroll services company creates or acquires a motion picture payroll services company, or acquires substantially all of the assets of a motion picture payroll services company, the created or acquired motion picture payroll services company shall:
(A) Constitute a separate employing unit, notwithstanding Sections 135.1 and 135.2.
(B) Have its reserve account and rate of contributions determined in accordance with subdivision (e).
(C) Notify the department of the entity being created or acquired and the nature of its affiliation to that entity.
(2) The department may promulgate regulations requiring a motion picture payroll services company, prior to the creation or acquisition of a motion picture payroll services company that will be an affiliated entity, to seek the approval of the department to apply this section to the created or acquired entity.
(e) When a motion picture payroll services company transfers all or part of its business or payroll to another motion picture payroll services company the reserve account attributable to the transferor shall be transferred to the transferee motion picture payroll services company, and the transferee’s rate of contribution shall be determined in accordance with Section 1052. The transferee shall notify the department within 15 days of the transfer of the business or payroll.
(f) For purposes of this section:
(1) “Affiliated entity” means any one or more motion picture payroll services company or companies that are united by factors of common ownership, management, or control as prescribed by Section 1061.
(2) “Allied motion picture services company” means any person engaged in an industry closely allied with, and whose work is integral to, a motion picture production company in the development, production, or postproduction of a motion picture, excluding the distribution of the completed motion picture and any activity occurring thereafter, and who hires from the same pool of craft and guild or union workers, actors, or extras as a motion picture production company.
(3) “Motion picture” means a motion picture of any type, including, but not limited to, a theatrical motion picture, a television production, a television commercial, or a music video, regardless of its theme or the technology used in its production or distribution.
(4) (A) “Motion picture payroll services company” means any employing unit that directly or through its affiliated entities meets all of the following criteria:
(i) Contractually provides the services of motion picture production workers to a motion picture production company or to an allied motion picture services company.
(ii) Is a signatory to a collective bargaining agreement for one or more of its clients.
(iii) Controls the payment of wages to the motion picture production workers and pays those wages from its own account or accounts.
(iv) Is contractually obligated to pay wages to the motion picture production workers without regard to payment or reimbursement by the motion picture production company or allied motion picture services company.
(v) At least 80 percent of the wages paid by the motion picture payroll services company each calendar year are paid to workers associated between contracts with motion picture production companies and motion picture payroll services companies.
(B) If the director determines that any employing unit is operating as a motion picture payroll services company but is failing to comply with any of the provisions of subparagraph (A) of paragraph (4), the employing unit is subject to determination of the employer-employee relationship pursuant to this code. When the director’s ruling becomes final, the director may preclude the employing unit from being classified as a motion picture payroll services company pursuant to this section for up to three years from the date of the determination.
(5) “Motion picture production company” means any employing unit engaged in the development, production, and postproduction of a motion picture, excluding the distribution of the completed motion picture and any activities occurring thereafter.
(6) “Motion picture production worker” means an individual who provides services to a motion picture production company or allied motion picture services company and who, with regard to those services, is reported under this part as an employee by the motion picture payroll services company. An individual who has been reported as an employee by the motion picture payroll services company, without regard to the individual’s status as an employee or independent contractor, shall be the employee of the motion picture payroll services company for the purposes of this code throughout the contractual period with the motion picture payroll services company.
(7) “Wages” shall have the same meaning given the term in Article 2 (commencing with Section 926) of Chapter 4 of Part 1 of Division 1, and shall include residual payments.
(g) If the director determines that an entity does not meet any requirement of this section, the director shall give notice of its determination to that entity pursuant to Section 1206. The notice shall contain a statement of the facts and circumstances upon which the determination was made. The entity so noticed shall have the right to petition for review of the director’s determination within 30 days of the notice, as provided in Section 1222.
(h) The director shall prescribe the form and manner of the statements and information required to be filed or reported by this section.
(Amended by Stats. 2012, Ch. 162, Sec. 178. Effective January 1, 2013.)
(a) Notwithstanding any other provision of law, when motion picture production workers are employed by one or more affiliated entities of a motion picture payroll services company that has elected to be treated and is being treated as the employer of those motion picture production workers pursuant to Section 679, the motion picture payroll services company may apply to the director for approval of the extension of an existing voluntary plan or plans for the payment of disability benefits to all motion picture production workers employed by all of the affiliated entities of the motion picture payroll services company. The director shall approve the extension of the voluntary plan to all of the motion picture production workers of all of the affiliated entities if he or she finds all of the following exist:
(1) The voluntary plan to be extended was in existence at the time of the election of the motion picture payroll services company to be treated as the employer of motion picture production workers pursuant to Section 679.
(2) The rights afforded to the covered employees are greater than those provided for in Chapter 2 (commencing with Section 2625) and Chapter 7 (commencing with Section 3300) of Part 2 of Division 1.
(3) The plan has been made available to all of the motion picture production workers of the employer employed in this state.
(4) If the plan provides for insurance, the form of the insurance policies to be issued has been approved by the Insurance Commissioner and the policies are to be issued by an admitted disability insurer.
(5) The motion picture payroll services company has consented to the extension of the plan and has agreed to make the payroll deductions required, if any, and transmit the proceeds to the plan insurer, if any.
(6) The plan provides for the inclusion of future employees in the manner described in subparagraph (A) of paragraph (2) of subdivision (b).
(7) (A) The plan will be in effect for a period of not less than one year and, thereafter, continuously, unless the director finds that the motion picture payroll services company or a majority of motion picture production workers employed in this state covered by the plan has given notice of withdrawal from the plan. The notice shall be filed in writing with the director and shall be effective only on the anniversary of the effective date of the plan next following the filing of the notice, but in any event not less than 30 days from the date of the filing of the notice.
(B) Notwithstanding the provisions of subparagraph (A), the plan may be withdrawn on the operative date of any law increasing the benefit amounts provided by Sections 2653 and 2655 or on the operative date of any change in the rate of worker contributions as determined by Section 984, if notice of the withdrawal from the plan is transmitted to the director not less than 30 days prior to the operative date of that law or change. If the plan is not withdrawn on 30 days’ notice because of the enactment of a law increasing the benefit amounts provided by Sections 2653 and 2655 or because of a change in the rate of worker contributions as determined by Section 984, the plan shall be amended to conform to that increase or change on the operative date of the increase or change.
(8) The amount of deductions from the wages of an employee in effect for any plan shall not be increased on a date other than an anniversary date of the effective date of the plan, except to the extent that any increase in the deductions from the wages of an employee allowed by Section 3260 permits that amount to exceed the amount of deductions in effect. The amount of deductions, for the purpose of providing coverage under the plan, shall not exceed that which would be required by Sections 984 and 985 if the employee were not covered by the plan.
(9) The approval of the extension of the plan will not result in a substantial selection of risks adverse to the Disability Fund.
(b) The extension of a plan approved by the director pursuant to subdivision (a) shall be deemed to have also met the consent requirements of Section 3257 if both of the following requirements are met:
(1) The plan met the consent requirements of Section 3257 when initially adopted.
(2) The plan provides for both of the following:
(A) Each employee to whom the plan is applicable shall be given written notice of his or her right to reject coverage under the plan and a written statement setting forth the essential features of the plan prior to or at the time of employment. The form of the notice and of the statement shall be approved by the director.
(B) On or before January 31 of each calendar year, each employee shall be given written notice, in a form approved by the director, of his or her right to withdraw from the plan at the beginning of any calendar quarter upon giving reasonable notice in writing directed to the motion picture payroll services company.
(Added by Stats. 2008, Ch. 391, Sec. 2. Effective January 1, 2009.)
(a) “Employer” also means any employing unit which employs individuals to perform domestic service in a private home, local college club, or local chapter of a college fraternity or sorority and pays wages in cash of one thousand dollars ($1,000) or more for such service during any calendar quarter in the calendar year or the preceding calendar year.
(b) Any employing unit which qualifies as an employer under this section shall not be treated as an employer with respect to wages paid for any service other than domestic service specified by this section unless such employing unit also qualifies as an employer with respect to such other service under Section 675, 676, 677, or 678.
(Amended by Stats. 2005, Ch. 152, Sec. 4. Effective January 1, 2006.)
“Employer” also means any employing unit which employs individuals to perform domestic service comprising in-home supportive services under Article 7 (commencing with Section 12300), Chapter 3, Part 3, Division 9 of the Welfare and Institutions Code and pays wages in cash of one thousand dollars ($1,000) or more for such service during any calendar quarter in the calendar year or the preceding calendar year, and is one of the following:
(a) The recipient of such services, if the state or county makes or provides for direct payment to a provider chosen by the recipient or to the recipient of such services for the purchase of services, subject to the provisions of Section 12302.2 of the Welfare and Institutions Code.
(b) The individual or entity with whom a county contracts to provide in-home supportive services.
(c) Any county which hires and directs in-home supportive personnel in accordance with established county civil service requirements or merit system requirements for those counties not having civil service systems.
(Added by Stats. 1978, Ch. 463.)
(a) Solely for the purposes of Part 2 (commencing with Section 2601) of this division, “employer” also means any employing unit which employs individuals to perform domestic service in a private home, local college club, or local chapter of a college fraternity or sorority and pays wages in cash of seven hundred fifty dollars ($750) or more to individuals employed in such service during any calendar quarter in the calendar year or the preceding calendar year.
(b) Any employing unit which qualifies as an employer under this section shall not be treated as an employer with respect to wages paid for any service other than domestic service specified by this section unless such employing unit also qualifies as an employer with respect to such other service under Section 675, 676, 677, or 678.
(Amended by Stats. 2005, Ch. 152, Sec. 5. Effective January 1, 2006.)
Solely for the purposes of Part 2 (commencing with Section 2601) of this division, “employer” also means any employing unit which employs individuals to perform domestic service comprising in-home supportive services under Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of the Welfare and Institutions Code and pays wages in cash of seven hundred fifty dollars ($750) or more to individuals employed in such service during any calendar quarter in the calendar year or preceding calendar year, and is one of the following:
(a) The recipient of the services, if the state or county makes or provides for direct payment to a provider chosen by the recipient or to the recipient of the services for the purchase of services, subject to the provisions of Section 12302.2 of the Welfare and Institutions Code.
(b) The individual or entity with which a county contracts to provide in-home supportive services.
(c) Any county which hires and directs in-home supportive personnel in accordance with established county civil service requirements or merit system requirements for those counties not having civil service systems.
(Added by Stats. 1981, Ch. 1025, Sec. 2.)
“Employer” also means any person contracting for the creation of a specially ordered or commissioned work of authorship when the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire, as defined in Section 101 of Title 17 of the United States Code, and the ordering or commissioning party obtains ownership of all of the rights comprised in the copyright in the work. The ordering or commissioning party shall be the employer of the author of the work for the purposes of this part.
(Added by Stats. 1982, Ch. 1332, Sec. 3.)
Notwithstanding any other provision of law, an employment agency, as defined in paragraph (3) of subdivision (a) or subdivision (h) of Section 1812.501 of the Civil Code, shall not be deemed to be the employer of the domestic workers for whom it procures, offers, refers, provides, or attempts to provide work if all of the following factors exist:
(a) There is a signed contract or agreement between the employment agency and the domestic worker that contains, at a minimum, provisions that specify all of the following:
(1) That the employment agency shall assist the domestic worker in securing work.
(2) How the employment agency’s referral fee shall be paid.
(3) That the domestic worker is free to sign an agreement with other employment agencies and to perform domestic work for persons not referred by the employment agency.
(b) The domestic worker informs the employment agency of any restrictions on hours, location, conditions, or type of work he or she will accept and the domestic worker is free to select or reject any work opportunity procured, offered, referred, or provided by the employment agency.
(c) The domestic worker is free to renegotiate with the person hiring him or her the amount proposed to be paid for the work.
(d) The domestic worker does not receive any training from the employment agency with respect to the performance of domestic work. However, an employment agency may provide a voluntary orientation session in which the relationship between the employment agency and the domestic worker, including the employment agency’s administrative and operating procedures, and the provisions of the contract or agreement between the employment agency and the domestic worker are explained.
(e) The domestic worker performs domestic work without any direction, control, or supervision exercised by the employment agency with respect to the manner and means of performing the domestic work.
The following actions exercised by an employment agency shall not be considered to be the exercise of direction, control, or supervision:
(1) Informing the domestic worker about the services to be provided and the conditions of work specified by the person seeking to hire a domestic worker.
(2) Contacting the person who has hired the domestic worker to determine whether that person is satisfied with the agency’s referral service. This contact shall not be used to identify improvements needed in a worker’s performance and to then discipline or train the worker regarding the performance of domestic work.
(3) Informing the domestic worker of the time during which new referrals are available.
(4) Requesting the domestic worker to inform the employment agency if the domestic worker is unable to perform the work accepted.
(f) The employment agency does not provide tools, supplies, or equipment necessary to perform the domestic work.
(g) The domestic worker is not obligated to pay the employment agency’s referral fee, and the employment agency is not obligated to pay the domestic worker if the person for whom the services were performed fails or refuses to pay for the domestic work.
(h) Payments for domestic services are made directly to either the domestic worker or to the employment agency. Payments made directly to the employment agency shall be deposited into a trust account until payment can be made to the domestic worker. Payments made to the domestic worker by the employment agency shall not be paid from any of the employment agency’s business accounts.
(i) The relationship between a domestic worker and the person for whom the domestic worker performs services may only be terminated by either of those parties and not by the employment agency that referred the domestic worker. However, an employment agency may decline to make additional referrals to a particular domestic worker, and the domestic worker may decline to accept a particular referral.
(Added by Stats. 1993, Ch. 1275, Sec. 3. Effective January 1, 1994.)
